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ETC. 189i. l-C A3i I 'i, h25 I Entered according to Act of the Parliament ofiCanad^, .n the year one thousand eight hundred and ninety-four, by The Carswell Co, (Ltd.), in the Office of the Minister of Agriculture. TORONTO : PBINTED BY THE CARSWBLL CO. LTD. 22, 30 Adelaide St. East. T PREFACE. \m IN offering to the public this book on Real Property- Statutes, the author is presenting the results of materials collected and of evenings spent during several years. It has been his aim to produce a work that will be of practical service to the profession ; and, with this aim in view, such statutes only have been selected as, by the number of decided cases bearing on them, seemed to demand a Commentary. To bring all the Statutes of Ontario that in any degree relate to Real Property within the compass of a reasonable volume, to be sold at a reasonable price, would have been impossible. On the other hand, to take single Acts and expand their meaning to the utmost in separate volumes would have been too ambitious and expensive a scheiiie to find favour with the profession. The author has chosen the middle course, and a perusal of the Table of Contents will, it is believed, shew that a liberal selection has been made of Useful Statutes well interlined with Judge-made Law. That the scheme of the book may be the better under- stood, it may be as well to explain the method employed in fitting together the annotations. First, the cases in our own Courts in Ontario were searched; and, wherever it was practicable, a consistent statement of the law was made from these cases. Then resort was had to the English cases and to cases in the other Canadian Courts, where the same seemed applicable. The American cases and the text- writers were only applied to when the other sources were exhausted. As a result of this method, the Ontario cases i^ If I 11 I] IV PREFACE. will be found set forth with considerable fulness, and generally in the ipsissima verba of the decisions ; while the substance of the other cases appears in a more con- densed form. As to the number of cases cited, although the Index includes some twenty-two hundred, yet no effort has been made to heap up the citations. On the contrary, it has been the author's desire to give just such decisions under each section as would serve to develop the branch or branches of law with which the section particularly deals. Moreover in the foot notes he has generally appended to each case, its date and a precis of its subject matter, wherever such subject matter could be given in small compass. In selecting which to follow of the innumerable branches of law that are suggested by various sections of enactments embraced in this book, the author has consulted utility and avoided antiquarian researches. Some few sections, however, referred to anciei t rules and doctrines of law ; and under such sections, have been given the neces- sary explanations. For, without some explanation, the phraseology of these sections might cause error ; as hap- pened where some one mistook the right of entry mentioned in section 9 of R. S. 0. c. 100 {infra), for the ordinary right of entry on a forfeiture, and so furnished us with a decided case under that section. As the arrangement of the notes under the various sections of the different Acts has prevented the collecting of all the matter bearing on each subject in the same portion of the book, it was necessary to insert a full Table of Contents and a full analytical Index, including an index to the various statutes and sections of statutes cited. The Real Property Statutes of most of the other Provinces of Canada, though somewhat differently arranged from those of Ontario, very frequently contain identical provisions. PREFACE. Great minuteness of reference and cross-reference in the Index, will enable any lawyer in tliose Provinces to use the commentary for purposes of his own local law. While it is too much to hope that a new work of this size should be absolutelj^ free from misprints and errors, no pains have been spai'ed to secure accuracy ; it is hoped that tlie table of errata contains nearly all the necessary correc- tions ; and these the reader is requested to carry into the text. The author desires to thank his father, Mr. J. Howard Hunter and his brother Mr. W. H. Hunter, Barris^'ers-at-law, for their constant assistance, and also his numerous friends in the profession for their valuable suggestions, in tJie preparation of this work. A. T. HUNTER. June 15th, 1894 Equity Chambers, Toronto. An A( tion "tei teni •' in gftg< proi thin by ( deec of p "in Bale of t( wori 6; wife Witl forn rece Beet Im] TABLE OF CONTENTS. An Act respecting the Law and Transfer of Property (R. S. O. 1887, c. 100) :— FAQES. Interpretation, section 1 ; " nnless a contrary inten- tion appears " ; " land " ; " real estate " ; " messuages " ; "tenements and hereditaments"; "of any tenure "; tenure in Ontario ; incorporeal hereditaments ; " estate " : " interest " ; " money subject to be invested " ; " mort- gagor"; mortgagee"; "property"; distinction between property and power; "and any debt, etc. "; "and any thing in action " ; " conveyance " ; " convey " ; ' made by deed " ; " forward a deed " ; " execute and deliver a deed " ; " purchaser " ; " purchase " ; " sale " ; purchase of pew 1-14 Corporeal tenements to lie in grant, section 2 ; " immediate freehold " ; grant and livery ; bargain and sale; lease and release; necessity for livery abolished... . 14-17 Feoffments, section 3 ; void unless by deed ; meaning of tortious operation 17-19 Words of limitation m deed, section 4 ; inappropriate words; " as in a will " ; where no words of limitation.. 19-23 Conveyance by person to himself jointly, etc. , section 5 ; joint tenancy ; conveyancos between husband and wife ; gift of realty by husband to wife ; covenant by man With himself 23-26 Receipt in deed sufficient, section 6 ; origin of section ; former rule in equity ; what constitutes receipt ; effect of receipt for full mortgage money 26-27 Rights of purchaser as to execution of purchase deed, section 7 ; old law ; right to pay vendor personally ; Imperial law distinguished from that of Ontario 27-28 J viii TAIlLh: <>/• COXT/i.yT.S. Deed necessary to contain conveyances, section 8; paqes. origin of section ; partition ; exchange ; lease required by law to be in writing ; "void at law"; summary, juris- diction of County courts; relation of section 8 to Statute of Frauds ; lease of incorporeal hereditaments ; necessity for notice to quit ; assiynments of chattr' interests ; assignment valid as security for costs ; surrender in writing ; surrender by operation of law 29-37 Deed, certain interests disposable by, section D ; continj^ent interest ; executory interest ; future interest ; possibility coupled with an interest ; former modes of ftssigninn such interests; formerly no*; assignable iiite'' vivos; object of gift ascertained; "right of entry"; " disposed of "; estate tail how affected ., 37-41 Certain words not to create warranty, etc., section 10 ; " covenant " ; " warranty " ; what implied by word "grant"; exchange"; peculiarities of exchange 41-45 Application of sections 8,9 and 10, section 11 ; lat January, 1850 45 Conveyance, what included, section 12 ; houses ; mill ; outhouses ; edifices ; barns ; stables : yards ; gardens ; orchards; trees; woods; underwoods ; fences ; ditches; ways ; waters ; water-courses ; lights ; liberties ; privi- leges ; easements ; profits ; commodities ; emoluments ; appurtenances ; " used or enjoyed with " ; can land be appurtenant to land 45-51 Corpo -ations can convey by bargain and sale, section 13; object of section ; doubts as to law previously 51-52 Bargain and sale need not be enrolled, section 14 ; two registrations formerly necessary ; how far registry still necessary 52-54 Sales free from incumbrances, sections 15 and 16 ; payment into Court ; effect of sections ; order to be made. . 65-57 Covenants implied, section 17 ; in conveyance for value ; according to Short Forms ; in conveyance of lease- holds ; in conveyance by trustee ; conveyance by direc- tion of beneficial owner ; where covenants not implied ; enforcing covenants ; variations of covenants ; " beneficial owner"; covenants express not implied; breach of covenants 57-59 Powers, execution of, section 18 ; classification of powers ; former law as to execution 60-61 TMiLE OF ClKVTE.yTS. IX Powers, release of, or contract not to exercise, section H»; wliat class of powers affected ; disclaimer Mistaken payment to tenant for life, section 20 ; to what section 20 refers; former effect of mistaken payment Auctions of estates, sections 21-24; ori^^iu of these sections; doubts in equity; "auctioneer" "puffer'"; reserved bid and reserved right to bid ; auctioneer selling below reserved bid ; effect of employing puffers Seller not authorized to purchase, section 2o ; object of section Application of sections 21-25, section 20 Rent charges, release of part, section 27 ; definition of rent charge ; law as to release of rent charge ; " without prejudice "; apportionment Future and contingent uses, section 28; gcintilla i'trlg abolished Contingent remainders not to be defeated in certain ways, section 29; requisites of contingent renin inder ; modes of destruction; forfeiture; surrender; lerger; tortious alienation ; expiration of precedent estate • tru c^;(.;s to preserve contingent remainders ; 30th aNfaj , 1849 ; 2nd Aug. 1831 ; 2nd March, 1877 Improvements under mistake of title, section 30 ; lien on lands improved ; origin and scope of section ; former equity rules; Manitoba decisions; rules for esti- mating compensation ; how to estimate unimproved value ; evidence of surveyors ; improved value ; increment from other sources than improvements ; occupation rent ; interest on improvements ; compensation to purchaser at tax sale ; improvements during li cigatiou Improvements, where unskilful survey, sections 31-32 ; assessment of damages, rule as to costs ; where improve- ments assessed at less than claimed ; origin and object of sections ; surveyor within meaning of sections ; " shall assess " ; what is evidence of improvements ; measure of compensation ; form of n ^ice ; effect of improper instructions for survey ; estoppel by acquiescence in boundary line Purchases of reversions, sections 83-35 ; origin of sections ; words omitted from our Act ; review of cases on undervalue ; summary of decisions ; solicitor acting for both sides ; delay or acquiescence ; unfair dealing ; eosts in cases of purchase of reversions ; to apply rule, property I'A(U;h, (11 -01 f)5-f.7 i>7 08 70-71 71-74 74-85 85-88 I m TABLE OF CONTENTS. ^ must be a reversion ; equity rule wider than statutory pages. one 89-94 Purchaser for value without notice, section 36; proof of purchase money unnecessary ; former law ; criticism of section 95-96 Frauds on sales and mortgages, section 37 ; conceal- ment of instruments ; falsifying pedigree ; civil liability for; criminal liability for; can section be cut out by condition of sale ? 96-97 Form of conveyance by beneficial owner, Schedule.. . 98 An Act respecting Mortgages of Real Estate (R. S. 0. 1887, c. 102) :— Interpretation, section 1; "property"; "land"; " conveyance " ; " convey " ; " mortgage " ; " mortgage money " ; "mortgagor" ; " mortgagee " ; " incumbrance"; " incumbrancer " ; " mortgagee in possession " 99-100 Assignment of mortgage in lieu of reconveyance, sec- tion 2; "where a mortgagor is entitled to redeem"; certificate of payment " ; reconveyance ; decision in Teevan V. Smith ; amendment to Imperial Act ; conveyance by first mortgagee to defeat second ; " on the terms " ; what covenant in assignment ; form of conveyance ; treat- ment of collateral securities ; to whom transfer to be made: form of order ; " mortgagee in possession" ; stipu- lation to contrary invalid 100-107 Power of mortgagor to inspect title deeds, section 3 ; former rule ; right to see mortgage deed ; director of mortgagor-company ; 1st day of July, 1886 107-108 Application of insurance money, section 4; Edmonds V. Hamilton Provident ; Metropolitan Building Act ; rights of mortgagee to insurance inoneys ; right of reinstate- ment ; application towards discharge of mortgage ; reten- tion as collateral security ; can mortgagee consolidate for purpose of absorbing insurance money ? can mortgagee bring action in his own name ? refusal by mortgagor to assign policy ; when mortgagee insures his interest, effect of foreclosure, etc 108-111 Covenants to be implied in mortgage, section 5 ; mortgage by beneficial owner ; covenants under Short Forms Act ; danger of using implied covenants ; mort- gage of leasehold; implied covenants are joint and several; nature of joint and several covenants; "more mortgagees than one" ; joint and separate claims 111-115 * TABLE OF CONTENTS. m Application of sections 5 and 6, section 7 ; 1st day of pages. July, 1886 115 Itftjrger, sections 8, 9 and 10; releafae of equity with- out merf^er ; purchase under execution, etc. ; not merged as against whom ; first mortgagee acquiring equity ; priority under Begistry Laws not affected ; comparison of our law with that of England ; how long is mortgage debt kept alive ; effect of purchase by mortgagee at sheriff's sale ; extent to which doctrine of merger is affected ; rule as to merger 115-118 Mortgage account proved by oath of assignee, section 11 ; rights of assignee ; paynjents made prior to assign- ment 118-120 How execntors, etc., may deal with mortgage, sec- tion 12 ; in what circumstances ; payment having been made to whom; convey; assign; release; discharge; origin of section ; object of section ; leaseholds how affected ; assignment by executors ; sale by executors ; bequest of indebtedness on mortgage; discharge, by executor, of mortgage by himself to estate 120-122 Certificate of payment valid at whatever time given, section 18 ; scope of section ; " if in conformity with the Registry Act " ; " be valid to all intents " ; statutory dis- charge ; registration of discharge ; operation of discharge ; discharge where mortgagor has conveyed equity 122-124 Receipts of mortgagee, sections 14, 15 ; advances on joint account; effect of section 14; nature of joint tenancy ; joint tenancy in purchases ; joint tenancy in mortgages, change effected by section 14 ; summary as to receipts of mortgagee ; will courts go behind joint-acconnt clause 124-130 Mortgagee's right of distress, sections It), 17 ; limited to goods of mortgagor ; limited, as against creditors, to one year's arrears ; mortgagee to relinquish to officer or assignee ; reimbursement of officer or assignee ; notice of sale of goods ; distress and attornment ; operation of sec- tion 16 ; attornment clause ; Hohhs v. Ontario L. it D. Co.; operation of section 17 ; disadvantages of attornment ; attornments to two mortgagees ; forms of distress and ittornment clauses; distress clause; sham attornment; attornment not intended to enable mortgagee to repay capital advanced 130-135 Powers incident to mortgages, section 18; Lord Cranworth's Act; power of sale; ^jower to insure 136-138 3lM TABLE OF COXTEyrs. Receipts for purchase money on sale under power, paoes. sufficient discharges, section 19 138 Notice before sale under power, section 20 ; to whom notice to be given ; where to be served ; notice to execu- tors ; notice to infant 138-139 Improper exercise of power of sale not to defeat title of purchaser, section 21 ; purchaser aware of irregu- larities .'. 139 Form of notice of sale, section 22 139-140 Registration of notice of sale, sections 23-24 ; affi- davit for registration ; certified copies as evidence 140 Application of purchase money on sale, section 25 ; priority of claimants 141 Conveyance to purchaser, section 2G ; what vendor under power can convey ; conveyance by equitable mort- gagee ; mortgagee of leaseholds 142 Owner of charge may call for title deeds, section 27. . 142 Taxation of mortgagee's costs, section 28 ; after costs paid; provisions of Solicitors' Act; application of sec- tion 28 143 Restricted application of powers of sale and insur- ance, section 29 143 Payment of principal after default, 51 V. c. 15, s. 2 ; exception in case of express agreement ; exception in case of acceleration ; former rule as to notice before payment ; when mortgagee not entitled to notice 144-140 Amendments to statutory power of sale, 51 V. c. 15, 88. 3, 4 ; 53 V. c. 27 ; effect of amendments ; summary of provisions as to power of sale 146-143 Time for questioning sales under power limited, 51 V. c. 15, 8. 5 14g No further proceeds after notice of sale, c. 102, s. 30 ; demand of payment ; order allowing further proceedings ; proof on which order granted ; style of cause ; exception in case of proceedings to stay waste ; mortgage must pro- vide for notice before section applicable ; advertisement of sale a further proceeding ; writ served after notice ; acts done simultaneously 149-151 Payment to be accepted if made in terms of notice, section 31 ; taxation of costs ; effects of section ; effect on acceleration ; effect on claim for interest or notice ; effect on costs 15J TABLE OF CONTEXTS. XIU Purchaser of niortgaj;e may set up defence of pnr- pages. chase for value without notice, section 32 ; necessity for section ; differences of opinion amon^; judges ; decisions since section enacted ; exception as against mortgagor . . 152-153 The Partition Act (R. S. O. 1887, c. 104) :— Short title, section 1 155 Interpretation; section 2; "land"; "petitioner"; "plaintiff"; "defendants" ir,5 Jurisdiction of High Court, section 3 ; jurisdiction of Courtof Chancery, 10th August, 1850; equity jurisdiction in partition ; Court of Common Pleas ; Court of Queen's Bench ISO 1 57 Judge of Surrogate Court to be real representative, section 4 ; definition of real representative, necessity for artificial real representative ; duties of real representa- tive ; Judge of the Surrogate Court 157-158 All parties having interest or lien compellable to suffer partition, section 5 ; joint tenants; tenants in common ; improvements by tenants in common, etc. ; effect of par- tition on tenancy in common ; co-parceners or parceners ; tenants for life ; tenants by entireties ; " dowresses and parties entitled to dower " ; tenancy by the curtesy ; " mortgagees and other creditors having liens " ; " and all parties whosoever interested " ; Act only intended to apply to simple cases ; estate legal or equitable 15f:(-](i4 In what court proceedings to be instituted, section G ; origin and history of section ; district courts ; Court of King's Bench KilUlo Proceedings removable from County Court to High Court, section 7 ; certiorari ; security ; appeal ; prohibi- tion 105 Any parties interested may petition for partition or sale, section 8 ; guardian of infant ; dowresses ; mort- gagees of undivided interests ; squatters on Crown lands ; tenants for life ; trustees for sale ; partition in the nature of specific performance ; " may file a partition " ; modes of obtaining partition ; by petition ; by bill or writ ; by motion under C. R. 989 ; advantages of petition ; proceed- ings by bill , rules 989, 990, 991 ; operation of C. R. 989 ; joining infant under C. K. 989 ; consolidation of motions under C. R. 989; operation of C. R. 990; Master in P IlilHIMi XIV TABLE OF CONTENTS. Chambers no jarisdiotion in partition ; ouster of joriadic- paoes. tion to partition ; agreement of parties interested ; period which must elapse before partition applied for; "in whom the lands, etc., may be vested " 165-179 Style of cause, section 9 ; how partition proceeding's entitled ; irregularity in style of cause 179 Who shall be made parties to petition, section 10; every person having an interest ; lands to be described in petition ; also interests and residences of petitioners ; also rights of all parties interested ; unknown parties ; lessee may be an interested party ; there mast be an opposing party even in an amicable suit ; C. B. 964 ; what to be endorsed on petition 179-180 Petition to be verified on oath, sectio.. 11 ; infants; Act respecting infants ; sub-sections 2 and 3 of section 11 ; service on official guardian ; infant resident outside juris- diction ; infants should be joined as parties' defendants ; official guardian's commission Provisions as to infants, sections 12, 13, 14 ; appomt- ment of guardian ad litem ; securities to be given by guardian ; acts of guardian bind infant ; case of laches of guardian Proof against infant, section 15 ; everything must be proved ; guardian cannot consent on behalf of infant ; court may consent ; former law as to consent by guardian ; effect of consent on behalf of adult ; agreement for parti- tion with minors ; partition where property to be divided on youngest attaining twenty-one 183-184 Guardians for estates of absentee, sections 16, 17, 18, 19 ; appointment of guardian where party unheard of for three years ; application and security ; powers of guardian ; power of court to deal with estate ; jurisdiction of High Court in such cases 185- 186 Guardian may apply to court for directions, sectif n 20; " and for compensation " 186 Incumbrancers to be made parties after proceedings commenced, section 21 ; lien holder, unless a party, not affected by proceedings ; difference between positions of mortgagee of whole and mortgagee of undivided interest 186 How petition to be served when parties in Ontario, section 22 187 How petition served when parties unknown or reside abroad, section 23 ; publication of notice ; contents of notice; form of notice to be settled ; object of section 23 187-188 180-182 182-183 TABLE OF CONTENTS. XV Notice to be pablished in Gazette and newspapers, pages. section 24 188 Notice to be posted on court house and school house, section 26 188 Publication of notice equivalent to personal service, section 26 188 Service on solicitor or agent in Ontario, section 27. . 188 Allowance of petition, section 28 ; proof of service ; object of allowance 189 Registration of certiticale of allowance, section 29 ; lands to be described 189 Service of notice of allowance, section 30 ; service on solicitor ; service by posting up 189 Parties interested may appear and show title, sec- tion 31 189 Parties may plead, section 32 ; issues ; special cases ; demurrer 190 Issues to be tried, section 33 ; issues how entered for sittings of HiRh Court 190-191 Proceedings in default of answer, section 34 ; judg- ment of partition 191 Petitioners to prove title, section 35 ; whether appear- ance or not ; prima facie proof required ; judge may order sale without reference ; how far title to be set forth ; references, court employs its own machinery ; references to whom and how conducted ; reference of question of title ; appeal from Master's report ; calculation of shares when child advanced ; sale without reference to avoid expense 191-194 Order to real representative to make partition, section 36 ; former provision as to appointment of arbitrators to make partition 194 How partition to be made, section 37 ; report and return thereon 194 Report to be proved, section 38 ; registration of report 195 Report to be confirmed or remitted for amendment, section 39 ; upon whom judgment binding ; e£fect of final judfTTient ; delay in confirmation ; conveyance after con- firmation ; procedure after filing report 195-197 Sale if partition prejudicial, section 40; conduct of sale ; investment of purchase money ; reference to real representative ; sale in portions ; where infants pray an I \ mm XVI TABLE OF CONTEXTS. inquiry ; partition or sale of water privilege ; O. J. A. pages. sections 31, 53 ; vesting order, effect of ; purchaser not affected by irregularities in orders of court 197-199 Mortgages taken on sale, section 41 ; in whose name ; in whose custody 199-200 Order for sale, section 42 ; where unknown parties bound 200 Orders binding unknown parties, section 43 ; proceed- ing to be taken before making such order 200 Reference as to incumbrances, section 44 200 Reference may be embodied in order for sale, sec- tion 45 20C Proceedings on reference, section 46 ; advertisement for creditors; two advertisements simultaneously ; objects of reference 200-202 Creditors may apply for payment out of purchase money, section 47 202 Real representative may pay creditors on order of court, section 48 202 Sale of estate of tenant in dower or by the curtesy or for life, section 49 ; estimation of value of estate according to annuity tables ; case where tenant for life objects to sale of estate 202-203 Inchoate right of dower, section 50 ; value deter- mined as in case of deferred annuity; Re Heioisli 203-204 Conduct of sale, section 51 ; notice of sale ; confirma- tion of sale ; conveyances; confirmation of partial sale. . 204 Parties under disability bound by sale, section 52 ; married woman ; infant ; lunatic 205 Proof of judgment effecting partition or sale, section 53 ; office copy ; how judgment to be entered ; C. R. 744 205 Deed effecting sale, section 54 ; effect of deed ; abso- lute title; deed eonclusive evidence of regularity of pro- ceedings 205 Costs, apportionment of, section 55; costs how obtained ; costs a charge on shares in proportion ; costii against petitioner how recoverable ; costs given arii party and party ; costs before and after hearing ; commis sion in lieu of costs C. R. 1187 ; scope of rule ; method of reckoning and apportioning commission ; discretion as to costs ; costs of guardian ; disbursements ; lump sum ; moderation of bill of costs ; jurisdiction of local master ; An It i TABLE OF CONTENTS. XVll costs of administratrix; unnecessary costs, C. R. 1195; pages. operation of rule ; unnecessary proceedings by next friend 205-210 Proceeds of sale, section 56 ; how applied ; shares of infants 211 Securities how taken, section 57 ; in name of real representative 211 Allowance for maintenance of infant, section 58 ; interest may be applied to maintenance 211 Investments, section 59; nature of securities author- ized 211 Payment into court, section 60 ; all moneys payable under Act ; procedure ; withdrat\-al ; books to be kept ; statements of moneys in court ; verification of statements ; books open for search ; fees for searches ; delay in pay- ment into court ; interest 212-213 Investments prior to 23rd Jan'y, 1869, section 61 ; releases and discharges 213 Absence or death of Surrogate Judge, section 62 ; provision for supplying vacancy 213 Proceedings not to abate on death, etc., section 63,. 213-214 Amendment of proceedings, section 64 214 Adding parties, section 65 214 Powers of Judge in Chambers, section 66 ; Master in Chambers 214 Affidavits, etc., where to be filed, section 07 214 Unclaimed moneys, section 68 ; annual account of ; disposition of, 51 V. c. 16 ; dispensing with annual account ; 53 V. c. 28 214-216 The Short Forms Acts: — Origin of; criticisms of; strict construction of ; reasons for a more liberal construction ; costs under .... 217-220 An Act respecting Short Forms of Conveyances (R. S. (). 1887, c. 105) :— Interpretation, section 1 ; " lands ";" party " 221 Use of schedules, section 2 ; deed containing form in column one to be construed as if containing corresponding form in column two ; not necessary to use numbers of forms 221 h % \* P XVHl TABLE OF CONTENTS. Deeda failing to take effect ander Act, section 3 ; as pages. effectual as if Act never passed 221 What passes with deed, section 4 ; very wide words of section 221-222 Schedules are part of Act, section 5 222 Form of conveyance. Schedule A 222-223 Forms of covenants and directions, Schedule B 223-238 Directions, 1-4 ; names may be 3ubstituted for certain words ; feminine for masculine, plural for singular ; ex- press exceptions or express qualifications; extension of covenant to acts of others than grantors ; what are the usual covenants 223-224 Covenant, general form, form 1 224 Covenant, right to convey, form 2 ; covenant for seisin or '* for title " ; scope of covenant for right to con- -vey ; what constitutes a breach ; covenant may be broken as soon as made ; damages recoverable for breach ; nominal damages ; who may sue on covenant ; who may be sued ; onus of proof ; " notwithstanding any act of the said" • 224-231 Covenant, quiet possession, form 3 ; scope of cove- nant ; what is a breach ; what constitutes an interrup- tion 231-232 Covenant free from incumbrances, form 4 ; what exceptions should be made ; conveyance of undivided interest 233-234 Covenant, further assurances, form 5 ; " shall be reasonably devised, advised or required " ; tender must be made of conveyance ; distinction between devise and advise 234-235 Covenant to produce title deeds, form 6 ; right of purchaser ; covenant for production involved in covenant for further assurance ; wheu purchaser entitled to copies at vendor's expense 235-236 Covenant, no act to incumber, form 7 ; local im- provement rates, how far incumbrances ; Cumberland v. Keams; amendments to Municipal Act 236-237 Release clause, form 8 237-238 Bar of dower, form of ; consideration in ; see 67 V. c. 41 (0.) 238 TABLE OF CONTENTS. XIX An Act respecting Short Fomis of Leases (R. S. 0. 1887, c. 106):— PAIBS. Use of Schedule, section 1 ; deed containing form in column one to be construed as if containing corresponding form in column two 239 Deeds failing to take effect under Act, section 2 ; to be as effectual as if Act not passed 239 What deed to include, section 3 239 Certain covenants to run with land, section 4 ; not to assign or sublet without leave ; proviso for re-entry to apply to either affirmative or negative covenant ; Lee v. Lorsch 239-240 Form of lease. Schedule A ; " demise and lease " ; "to be computed," etc. ; '-yielding and paying"; cases on time of payment under lease ; effect of indefinite habendum 240-242 Covenants and directions. Schedule B 242 -25^ Directions, 1-5; "any name or names"; feminine for masculine, plural for singular ; express exceptions or express qualifications; freehold and leasehold tenure; direction 5, covenant not to assign, etc., to run with land ; former law ; assignee's liability 242-244 Covenant, to pay rent, form 1 ; runs with land ; mining lease ; right of executor to sue for rents 244 Covenant, to pay taxes, form 2; special rate; lia- bility as between landlord and taaant ; arrears ; cases on taxes 244-245 Covenant, to repair, form 3 ; runs with land ; scope of covenant to repair ; old and new premises 245-247 Covenant, to keep up fences, form 4 ; effect of run- ning this covenant into preceding one ; cases on cove- nant ; removal of fence, how far a breach 247-248 Covenant, not to cut down timber, form 5 248 Covenant, that lessors may enter and view repairs, etc. form 6 ; effect of exceptions in covenant to repair ; where landlord covenants to repair 248-249 Covenant not to assign or sub-let, etc., form 7 ; verbal assent of lessor, no protection to lessee ; necessity of notice to quit or demand for possession where covenant broken ; assignment for benefit of creditors ; cases on covenant 249 Covenant, to leave premises in good repair, form 8 . . 250 w XX TABLE OF CONTENTS. Proviso, for re-entry, form 9; variations in statutory pages. form ; "it shall bo lawful to reenter"; effect of proviso determining lease ; " fifteen days " ; waiver of ri^'lit of entry ; further cases 250-252 Covenant, quiet possession, form 10 ; " claiming by from or under" ; effect of postponing lease to mortgage; further cases 252-253 hxi Act respecting Short Forms of Mortgages, (R. S. 0. 1887, c. 107) :— Interpretation, section 1 ; " lands " ; " party " ; 255 Use of Schedule, sectipn 2; mortgage containing form in column one to bd construed as containing correspond- ing form in column two 255 Mortgage failing to take effect under Act, section 3 ; to be as valid as if Act not passed 225 What mortgage includes, section 4 255-250 Schedule to form part of act. Section 5 25G Form of mortgage. Schedule A 256 Covenants and directions as to their use, Schedule B 256-280 Directions, 1-4 ; substitution of names ; feminine for masculine, plural for singular ; express exceptions or other oxpress qualifications 256-257 Bar of Dower, form 1 ; effect of wives bar of dower in mortgage 257 Proviso for redemption, form 2 ; construction of proviso ; nomiuHl consideration .. .. 258-259 Covenant, general form, form 3 259 Covenant, to pay the mortgage money, etc., form 4 ; amendments affecting the personal covenant ; 56 V. c. 17 259-260 Covenant, good title in fee, form 5 ; effect of coven- ant as working an estoppel 260-26 Covenant, right to convey, form (> 261 Covenant, quiet possession, form 7 ; distinction between leasing powers under form 7 and form 14 261-263 Covenant, free from incumbrances, form 8 ; absolute effect of covenant 263 Covenant, further assurances, form 9 263-364 Covenant, to produce title deeds, form 10 264 Covenant, no act to incumber, form 11 264 The TABLE OF CONTENTS. XXI Covenant, to insure, form 12 ; common mode of paobs. mortgage insurance ; mortga; ri-ght of subrogation 205-208 Release of all claims, form 13 200 Proviso for power of sale, form W ; powar of sale without notice; new trustee in a better case than an assignee ; lie British Canadian L. d: I. Co, v. Ray ; necessity for entry on the land ; power exercisable on one month's default ; exercise of power of sale can lot be treated as a nullity; execution creditors as " a8si;^np " of mortgagor; " at his or their usual or last place of residence " ; not less tlian previous " '• to sell and ••.bsolut^ly dispose of " ; " by public auction or private contract " ; " to pay and satisfy the costs ; " and shall pay the surplus " 209-275 Proviso for distress, form 15 ; written v. printed pro- visirns 275-277 Proviso for acceleration of principal, form 10 ; exer- ' cisable on default in payment of interest ; payment of instalments of principal, not mentioned in proviso ; acceleration optional, but mortgagee bound by his option ; relief against acceleration ; acceleration for other causes than non-payment 277-280 Proviso for redemise, form 17 280 I fl' f \ If The Devolution of Estates Act (R. S. 0. 1887, c. 108) :— Introductory remarks ; composition of present Act ; effect of Act of 1886 ; real representative 281-283 Short title, section 1 ; "devolution" 285 Application of sections 3-10, section 2 ; Ist day of July, 1886 ; " dying on or after " 285-':80 Application to what property, section 3 ; fees simple ; " or limited to the heir as special occupant " ; " to chattels real in Ontario"; "in Ontario"; distinction between movable and immovable property ; general testamentary power of appointment ; general effect of section 3 280-289 Property to devolve on personal representative, sec- tion 4 (1) ; general residue of real and personal estate ; can devisee make good title ; title in devisee after one XXll TABLE OF CONTENTS. year ; are devisees necessary parties ; legal personal paqeb, representative; distinction between trustees and execu* tors; "distributed"; personal property in this Act and in Surrogate Courts Act ; appointment of administrator ad litem 289-294 Distribution of personal property, 22-23 Gar. II. c. 10 ; 29 Car. II: c. 3 ; 1 Jac. II. c. 17 ; origin of statutes of distribution; "ordinary"; ecclesiastical or spiritual courts ; surrofjate courts ; statutes of distribution to be construed by civil law ; computation of degrees ; legal representatives ; object of 1 Jac, II. c. 17 ; property of foreigners; partial intestacy; no representation among collaterals; cousins; uncles and aunts, nephews and nieces ; grandparents and grandchildren ; advancement and hotchpot ; half-blood ; only child ; posthumous children 294-301 Widow's riyht to dower, how affected, c. 108, b. 4 ^2) ; how widow's election may be made; election by will ; election before the Devolution of Estates Act ; amount of widow's share under Act 301-803 Tenancy by curtesy, section 4 (3) ; election by bus- band ; would be entitled to an interest ; distribution after husband's death 303-304 Security by administrators, section 4 (4) ; provisions of R. S. 0. 1887, c. 50, ss. 63-66 ; security for succession duty, 55 V. c. 6. s, 5 304-306 Property of married woman dying intestate, section 5 ; distribution under R. S. O. 1887, r.. 132, s. 23 ; conflict between sections ; separate property of wife 806-807 Intestate without issue, section 6 ; rights of father, mother, et al 307-308 Debts, application in payment of, section 7 ; former rule as to application of realty ; mort^^aged land devised. . 308-309 Infants' estates, sales of, section 8 ; official guardian ; local guardians ; foreclosure proceedings where infants are beneficiaries ; C. R. 309, 1005 ; duty of official guar- dian ; signification of " devolve " 809-812 Powers of personal representative, section 9 ; convey- ance of wife's lands by husband; attempted exchange ; can executor of deceased lessor renew lease 312-315 Personal representatives to be deemed heirs and assigns, section 10 ; " heirs and assigns " 315 TABLE OF COSTENTS. XXIII Ki^hti of (leviseeB, etc., after one year, S4 V. o, 16 ; paueb. veBtiug of property except caution filed ; form of caution ; what lands affected by caution ; withdrawal of caution ; powers of executorB in relation to realty ; past sales, validity of ; persons accepting; share of purchase money to be bound by sale ; bona Jide purchasers to hold estate free from debts ; bona fide purchasers from devisee ; rules for procedure under Devolution of Estates Act; deputy pro tern, of official guardian ; aMdavits, before whom Bworn 31« 3ltf VestinK of estates in devisees, etc, 56 V. c. 20 ; regis- tration of caution after twelve months ; effect of regis- tration ; period for vesting not extended ; application of Act 3l'l-321 Effect of Acts of 54 & 56 Vict. ; Re McMillan ; per- sonal representative of mortgagor after lapse of year ; how far 54 & 56 V. are retrospective 321-324 Interpretation clause for sections 12 to 26 of c. 108, section 11 ; " land "' ; " purchaser " ; " descent " ; " des- cendants of any ancestor " ; " person last entitled to land"; "assurance"; "rent"; "person through whom another person is said to claim " 824-325 Descents before Ist July, 1834, section 12 ; signifi- cance of date 325 Descents since Ist July, 1834, section 13 ; 6th day of March, 1834 ; equitable estates 325 Descent traceable from last purchaser, section 14 ; change effected by this section ; son claiming descent from illegitimate father ; vendor relying on statutory presumption of purchase ; further cases 325-327 Heir entitled under will takes as devisee, section 15 ; limitation to grantor or his heir creates an estate by purchase ; changes effected by section ; rule in Shelley's case ; former rule as to remainders 327-328 Ancestor treated as first purchaser, section 16 ; gift to heirs of a person to whom no estate is given 328 329 Attainder, effect of, on descents, section 17 ; R. 8. O. 1887, c. 95 ; Criminal Code 1892, s. 965 329 Heir-at-law need not prove entry, section 18 32;) Limitations before Ist July, 1834, to heirs of person then living, section 19 329-330 m ii XXIV TABLE OF CONTENTS. Grantees, devisees, etc., when they take as joint pages. tenants, section 20 ; incident of survivorship ; *' executors or trustees " 830 Descents between 1st July, 1834, and 1st January, 1852, section 21 ; significance of dates; object of retaining sections in statute 830-331 Descents between brothers and sisters, section 12 ; to be traced through parent 331 Lineal ancestor preferred, section 23 ; father, how far preferred ; " and a more remote lineal ancestor " ; former rule excluding ascent of estate 331-332 Male line preferred, section 24; how mother shares; proof of exhaustion of paternal line 332-333 Mother of more remote male ancestor preferred, sec- tion 25 ; proof of exhaustion of superior lines 338 Half-blood, how to inherit, section 26 ; present rule. . 333-334 Descents since 1st January, 1852, section 27 ; signifi- cance of dates 334 Interpretation as to sections 31 to 57, sections 28, 21), 30; "real estate"; "inheritance"; legal and equitable estates; "any person described as living " ; "where the estate came to the intestace on the part of the father " . . 334-335 Descent from intestate dying after 1st January, 1852, section 31 ; lineal descendants ; father ; mother ; col- lateral relatives ; per stirpes ; per capita ; 22-23 Car. II. c. 10; misleading effect of section 31; "to his father;" collateral relatives, what they are 335-337 Descendants in equal degrees of consanguinity, sec- tion 32 ; this section introduced descent per capita 337-338 Where some children dead leaving issue, section 33 . . 338 Other descendants in unequal degrees, section 34. . . . 338 Where no descendants, right of father, mother, etc., section 35 388 Where no father, section 36 338 Where no father or mother, section 37 338-330 Succession of brothers and sisters and their descend- ants, sections 38-39 839 Where no heir under preceding sections, sections 40-41 339 Where estate came on mother's side, section 42 389-340 Where estate came neither on father's nor mother's side, section 43 840 TABLE OF CONTENTS. XXV Succession of half-blood, section 44 ; under Statute pages. of Distributions 340 In unprovided cases, Statute of Distributions to apply, section 45 341 Co-heird to take as tenants in common, section 46 ; only chi'id 341 Po'jthumous children, section 47 ; under Statute of Distributions 341 Illegitimate persons, section 48 ; foreigners 341 Exception of certain estates, section 49 ; curtesy ; dower ; limitation by deed or will ; present law 341-342 Advancement and hotchpot, sections 50-53; "so expressed by the intestate in writing " ; hotchpot, mean- ing of ; rule under Statute of Distributions ; advance- ment must be during intestate's lifetime ; what constitutes an advancement requiring to be brought into hotchpot ; repairs not an advancement ; annuities as advancements ; sum settled treated as advancement ; advancement by widow; widow not benefited by bringing into hotchpot.. 312-341) Purchase by interested parties of estate subject to partition, sections 54-57 347 Table of descents 347-34;t The Real Property Limitation Act (R. S. 0. 1887, c. Ill):— Short title, section 1 352 iTiterpretation, section 2 ; " land " ; equity of redemp- tion ; " hereditaments, whether corporeal or incorporeal " ; " assurance " ; " rent " 3.52-353 Commencement of Act- section 3 ; significance of dates ; " or so resident " ; cuses on foreign immovables . . 353-354 No entry or action but within ten years after right accrued, section 4 ; person ; action brought, at what point currency of statute interrupted ; proceeding under Quieting Titles Act ; foreclosure action ; redemption action 354-355 When right deemed to have accrued, section 5 355 et seq. On dispossession or discontinuance, section 5 (1) ; possession of different kinds of property must be such as property capable of ; further cases as to what constitutes it XXVI TABLE OF CONTENTS. poBseHBion ; the possession that bars title and the posses- pages. &ion that gives it ; privity of title between successive occupiers need not be evidenced by deed ; classes of persons claiming possession ; doctrine of constructive possession ; none by vendor against vendee ; statute con- strued against mere trespassers ; mere trespasser confined to his pedal possession ; where possession not exclusive, in whose favor is it ; payment of taxes as evidence of possession ; tax sale, when does time begin to run ; occupant under deed or will cannot set up statute ; onus and costs of proving possession ; boundaries, their significance in relation to the statute ; will erroneous line of fence be extended ; possession of wild lands, difficulties ; when mere trespasser actually occupying a portion may claim whole lot ; test of possession of more than actually occupied by mere trespasser ; what consti- tute acts of ownership of wild land ; employing care- taker is an act of possession ; depredations ; dispossession or discontinuance of possession ; distinction between dispossession and discontinuance; essential features of discontinuance ; lack of actual possession does not amount to discontinuance ; discontinuance of construc- tive possession ; should be evidenced by overt act ; departure without anitnus revertendi ; evidence of dispos- session should be unequivocal ; no dispossession of undivided moiety ; statute runs until dispossessed owner restored to possession 356-381 When right accrues on abatement or death, section 5 (2) ; explanation of section 381-382 When right accrues on alienation, section 5 (3) ; " other than a will " ; cestui que trimt in possession When right accrues as to lands granted by Crown, section 5 (4) ; how far Crown may set up statute ; provi- sion of Petition of Right Act ; former rule in doubt ; Crown not barred by statute ; Crown not barred even though a trustee ; extent of rule excepting Crown from operation of statute ; Crown must divest itself of the fee before statute can run ; what limitations against the Crown ; Nullum 2'empus Act ; nature of claim under Nul- linn Tempus Act ; to what cases it applies ; does not apply to waste lands ; effect of sub-section 4 as to waste lands ; patentee not considered as disseised ; patentee protected even though ignorant of his ownership ; actual poHsession by patentee ; actual possession must be subsequent to 382 \% I TABLE OF CONTENTS. XXVll ES. 81 i82 82 patent ; onus of proof that patentee ever in posBession ; pages. *' some other person not claiming to hold under such grantee " ; grantee claimed under must be the true grantee; " while entitled to the lands " ; lease or license of Crown lands or timber limits 38'2-392 Wrongful perception of rent, section 5 (5) ; meaning of " wrongfully claiming " ; meaning of " rent " ; old law of limitations as to leases; time when right accrues under this section : tenant setting up title adverse to his land- lord's ; wrongful perception by executor or agent ; distinction between wrongful perception and allowing lessee to neglect payment ; encroachments by tenant ; case of lease void ah initio 392-395 Tenancy from year to year, section 5 (6) ; statute runs from end of one year or last payment ; definition of tenant from year to year ; " without any lease in writ- ing " ; transmission of interest of tenant from year to year ; payment after statutory period by tenant from year to year ; further cases 395-396 Tenancy at will, section 5 (7) ; right accrues at end of one year ; change operated by this sub-section ; adverse possession ; nature of tenancy at will ; good nature or inattention may cause a man to lose his estate ; statute not to be liberally construed as against former owner*; interruption of tenancy at will ; statute runs from the creation of a new tenancy ; effect of consent to remain as tenant ; agreement for new tenancy created by implica- tion ; interruption by acquiescence in new arrangement ; requisites for agreement creating new tenancy ; mere determination of tenancy at will after one year will not stop currency of statute ; tenancy at will or tenancy for life ; possession of brother as tenant at will 396-40S Mortgagor or cestui que truH not to be deemed tenant at will, section 5 (8) ; object of sub-section ; occupation of ctstiii que trust; effect of sub-section in cases of trusts; express trusts are meant ; position of cestui que trust may be presumed 403-404 When right accrues in case of forfeiture or breach of condition, section 5 (9) and (10) ; when forfeiture not taken advantage of; meaning of forfeiture or breach of condition ; forfeiture under a lease 404-405 When right accrues in cases of future estates, section 5 (11) and (12); remainderman; tenant for life; tenant XXVIU TABLE OF CONTENTS. in tail; equitable remainderman; remainderman, where pages. statute running in testator's lifetime 405-407 Where person entitled to the particular estate out of possession, section 6 ; " out of possession " 407-408 Administrator, when right accrues, section 7 ; from the death ; former rule tnat time ran from grant of administration ; application of section 408 Mere entry not to be deemed possession, section 8 ; elements of a proper entry ; entry by owner upon a por- tion of his land ; cases as to what constitutes sufficient disturbance 409 No right to be preserved by continual claim, section 9; definition of continual claim 409-410 Right of entry not defeated in certain ways, section 10 ; descent cast ; "tolled"; discontinuance; warranty.. 410-411 Possession of some co-owners, section 11 ; not to be deemed possession of other co-owners ; co-parceners ; joint tenants ; tenants in common ; old law as to ; effect of this section on rights of tenants in common ; point of time from which section operates ; distinction between occupa- tion of trespassers and separate occupation of tenant in common ; adult and infant co-owners; tenani iu common out of possession acquiring interest of one in possession ; wrongful possession by two persons makes them joint tenants; payments by one to another tenant in common, presumption arising from ; cases on liability of one co- owner to another 411-414 Possession of relations not to be possession of heirs, section 12 ; occupation by widow of owner; occupation by father; corresponding section in Imp. Act; "younger brother " 414-415 Acknowledgment in writing, section 13 ; general effect of written acknowledgment ; offer by person in possession to purchase from owner ; offer after statutory period ; offer by occupant under imperfect paper title ; writteti acknowledgment, however obtained, is binding if true; verbal acknowledgment; "or to his agent"; acknow- ledgment by agent ; notice to quit by landlord ; can an acknowledgment be made to start statute running at a future date; acknowledgment distinguished from estop- pel ; estoppel by consent to a conveyance ; estoppel by consent to a mortgage ; draft deed as evidence; sufficiency of acknowledgment, wiiether a question for judge or jury. 409-420 I I i 'it TABLE OF CONTENTS. XXIX Receipt of rent to be deemed receipt of protits, eec- pages. tion 14 ; as against lessee, etc 420 Title of party out of possession extinguished at end of period, section 15 ; not merely claim barred but title extinguished ; effect of subsequent entry by person barred ; payment or acknowledgment after period ; nature of interests barred ; nature of interest acquired ; how far title by "parliamentary conveyance"; successive tres- passers in privity ; successive independent trespassers as against original owner ; successive independent trespas- sers inter Ke ; is title under statute marketable ? pleading the Statute ; effect of possession under Land Titles Act. . 420-425 Arrears of dower, section Ifi ; not recoverable for more than six years ; former limitations in law and equity 425 Arrears of rent or intei-est, eection 17; not recover- able for more than six years ; arrears of rent • application of statute to rent charged on land ; annuities ; annuities may come under section 23 ; personal annuity ; money payable out of land ; interest on legacies charged on land ; time when interest begins to run on legacy ; interest on mortgages; interest on muiugage of personalty; money paid into Court, what arrears out of ; interest on money secured by vendor's lien ; interest on judgment where land under ^ fa; "the person by whom the same was payable " 425-430 Exception in favour of subsequent mortgagee where prior one in possession, section 18; explanation of section 18 ; must come for relief within a year; judgment creditor may be prior incumbrancer 480-431 Mortgagor barred by possession of mortgagee for 10 years, section 19 ; what is a mortgage within section 19 ; possession must be acquired by mortgagee, qua mort- gagee ; can solicitor of mortgagor be deemed mortgagee in possession ; the possession of mortgagees passes to their assigns ; distinction between rights of entry of mortgagor and mortgagee; purchase from mortgagee under power of sale ; effect of suit for a'^ministration ; what is sufficient acknowledgment by mortgagee ; acknowledgment to third person ; accounts kept by mortgagee ; possession of part of property by mortgagee ; can time be extended by terms of original mortgage contract ; disabilities of mortgagor ; effect of bankruptcy on mortgagor's rights 431-437 Acknowledgment to one of several mortgagors, section 20 ; the equity of redemption is an entire whole 437 rr--.-T XXX TABLE OF CONTEXTS. Acknowledgment by one of several mortga^eea, section paoes. 21 ; acknowledgment by one of two joint mortgagees. . . . 437-438 Period of limitation a^^ainst mortgagee, sections 22 and 23 ; mortgagee may enter or sue within ten years from last payment ; when money charged and legacies to be deemed satisfied ; origin and object of section 22 ; change effected by aectiou 23 ; statute operates a reconveyance to mortgagor ; claiming under a mortgage ; foreclosure ; action on covenant ; judgment ; charge for local improve- ments ; vendor's lien ; " money charged upon or payable out "; legacy, how far within section 23 ; legacy not charged on land is within section 23 ; legacy includes residue or share thereof ; charge of debts will not revive barred legacy ; former rule as to legacies ; " present right to receive " ; after a present right accrued ; mortgage with- out re-demise, when right to enter accrues ; where lands vacant and no re-demise ; payment by whom made ; distinction between sections 22 and 23 ; payments by mortgagor after he has assigned the equity ; payments by tenant for life of the equity ; effect of payment by one joint owner of equity ; agent to pay interest ; payment to second mortgagee by solicitor of first mortgagee ; payment of interest to mortgagee— third person in possession ; difference between payment and acknowledgment ; by whom acknowledgment may be given ; acknowledgment by tenant for life ; agency, proof of ; acknowledgments, to whom made ; will acknowledgment to mortgagor by third person in possession avail mortgagee : acknowledgment how made ; acknowledgment must be intentional ; case where mortgagor and mortgagee the same ; effect of insol- vency of mortgagor ; locatees of Crown, effect of issue of patents to mortgagor or mortgagee 438-452 Time not to be enlarged by express trusts, section 24 ; former law as to ; effect of trust for sale and payment of debts ; problem under Devolution of Estates Act 452-454 Dower, period of limitation for, sections 25 and 26 ; action for dower to be brought within ten years ; how period computed ; widow's right before section 26 ; agree- ment in lieu of dower may stop statute running ; posses- sion of dowress may extinguish right of heirs ; pleading statute in cases of dower 454-455 Bar of estates tail, sections 27, 28, 29; distinction between neglect or voluntary abandonment and convey- ance ; application of section 27 ; where remainderman iES. -438 (.4o2 !-454 1-455 TABLE OF CONTEX^TS. under di " ; no necessity to go behind discharge and enquire as to actual payment ; discharge does not operate as a re-conveyance until regis- tered ; duty of registrar in recording discharges ; effect of errors or omissions in discharges; registration of dis- charge when mortgage paid off by new loan ; object of sub-section 2 ; " shall be registered " ; subrogation to the rights of mortgagee paid off ;j76-581 Discharge of mortgage to married woman, sections 77-78 ; mode of execution ; joint execution ; discharges before 19th December, 1868 581 . Partial discharge of mortgage, section 79 ; portion to be released to be described precisely "<81-582 Discharge of mortgage seized under execution, section 80 ; cases on mortgages seized in execution 582-583 Residence of witness to discharge need not be given in attesting clause, section 81 583 Discharge of lien note, section 82 583 By-laws opening streets, registration of, section 83 ; by-laws affecting changes in municipal boundaries 583-584 Effect of registering or omitting to register, section 84 ; unregistered instrument void against subsequent purchaser ; law previous to section 84 ; " after any grant from the Crown " ; notice of alienation of unpatented lands ; valuable consideration must be proved ; how far receipt in deed is proof of valuable consideration ; "without actual notice"; prior registration of mortgage gives priority to power of sale ; purcliaser with notice from purchaser without notice ; to what relief subsequent purchaser entitled ; tendency of courts as to priority of registration; vendor does not complete title untH regis- If xl TABLE OF CONTENTS. tration ; effect of indefinite description on property ; pages. pleading priority ; registry required ior other purposes than to preserve priority 584-590 Power of attorney to sell land on commiasion, sec- tion 85 ; priority of 590 Wills to be registered within 12 months from death, section 86; "subsequent purchasers and mortgagees"; " other inevitable difl&culty " 591 Registration of tax deeds, and deeds of sale under process, sections 87-88 ; cases 591-592 Registration to constitute notice, sections 89, 90 ; for- mer rule ; principle on which registry is deemed notice ; constructive notice only to after purchasers ; is presump- tion of notice absolute ; scope of notice under this section ; " any interest in the lands" ; does section 89 affect cove- nant against incumbrances ; retrospective operation of section 89 ; " notwithstanding any defect in the proof ". . 592-594 Entries in index and corrections by registrar, sec- tion 91 594 Penalty for unauthorized alteration of entries, sec- tion 92 591-595 When instruments to be deemed registered, section 93 ; receipt by registrar constitutes registry ; when two instruments received on the same day 595 Priority of registration to prevail unless actual notice ; equitable liens ; tacking, sections 94, 95 ; what actual notice is ; notice to solicitor, notice to client ; possession is not actual notice ; attempt to reconcile sec- tions 94 and 95 ; unregistered equities ; unregistered vendor's lien ; equitable right to rectification of instru- ment; effect of Registry Act on easement implied in grant ; tacking, principles of ; consolidation ; tacking or consolidation not abolished except as againot registered conveyances; consolidation an occult equity; retrospec- tive operation of sections 94 and 95 ; how writs of fi. fa. lose their priority ; 57 V. c. 20 596-604 Mortgages for future advances, 57 V. c. 34 ; intention of Act ; "is expressed to be a security"; distinction be- tween mortgage for future advances and a further charge ; relation of 57 V. c. 34, and 56 V. c. 24 605-607 Registration of plans, section 96 ; scale of plan and what must be shewn; instruments must conform to; penalty for refusing to register plans; plans of unpatented TABLE OF CONTEXTS. Xli 595 lands ; who should file plan ; remedy for unauthorized fil- paoeh. ing of plan ; morttjajjor and mortgagee, right to file plan ; right of mortgagee in case of foreclosure ; can sheriff sell without reference to new plans ; " otherwise they shall not be registered " ; instrument partly capable and partly incapable of registration ; omission of owner to sign certificate ; uncertified plan, how far registered deed may refer to 607-012 Application of section 96. section 97 613 Plan index, section 98 ; have public right to inspect . . 613 Abstract index to subdivisions of townships, etc., section 99 613 Registration of instruments referring to unregistered plan, section 100 614 When plan must be registered in case of lands sub- divided before 4th March, 1868, section 101 614 Alteration in plan, section 102 ; plan not binding until some sale made under it ; order of court changing plan ' agreement to sell according to plan ; registration of and sale by plan ; right of purchasers and public ; public highways, how far dealt with by this section ; effect of plan as evidencing dedication to public ; until dedication is absolute, plan not binding ; subsequent plan will not affect actual dedication ; jurisdiction of the courts ; status of party applying is within jurisdiction of county judge ; decision may be appealed from ; " at the instance of the person filing or his assigns " ; person filing within this section may be intending owner 614-619 Plan of whole town or city, section 103 ; application of section 103; compilation of surveys 019-(}22 Duplicate plan to be filed with municipal treasurer, section 104 622 Re-registration where registry books lost, section 105 622 Defects in registration cured, sections 106, 107 and 108; defects in deeds registered before 4th March, 1868; defects in deeds before 29th March, 1873 ; absence of certificates on margin of books 622-623 Provisions for subdividing townships, section 109.. . . 623-624 List of crown grants to be transmitted to Registrars, section 110 624 Fees of registrars, section 111 ; other fees than in section 111 mentioned ; jurisdiction of Province; fees for registrations generally ; where instrument includes lots % M xHi TABLE OF coy TEXTS. in different localities ; registration in full ; who pays paoks, costs of registering mortgage ; fees for searches ; definition of " lot " ; fees payable by mortgagee where lot subdivided by mortgagor; fees for exhibiting registry books and indexes ; abstract index ; alphabetical index ; general search ; abstracts of title ; fees for certificates ; fees for searching plans ; fees for statements under sections 32 and B3; fees for affidavits ; fees for exhibiting originals ; number of original must be ascertained ; fees for regis- ering discharges ; discharge of lien; tax certificate ; bow figures reckoned 624-633 Disputes as to fees, section 112 ; submission tu in- spector ; appeals from inspector C33 Table of fees to be posted in registrar's otHce, section 113 633 Eegistrar to give statement of fees, on request, section 114 633 Recovery of fees by registrar from municipal corpo- ration, section 115 ; inspector's certificate tohe priuia facie evidence 633-634 Eegistrar not compelled to register unless fees paid, section 116 634 Registrar to keep accounts and make annual returns to Lieutenant-Governor, section 117; what returns to show 634-635 Registrar to furnish assessor with list of conveyances, section 118 635 Scale of registrar's portion of fees, section 119 636 Application of surplus fees, section 120 ; surplus to be apportioned as received ; method of reckoning regis- trar's emoluments ; return where registrar dismissed before end of year ; sureties of registrar 636-639 Percentages of fees payable to Provincial Treasurer, section 121 639 Meaning of " net income," section 122 640 Returns to Provincial Treasurer, section 123 640 Fees for services under election laws, section 124. . . . 640 Lieutenant-Governor may make rules and regula- tions, section 125 640 Disbursements subject to revision of inspector, section 126 , 640 Fees under sections 32 and 35, section 127 640 TABLE OF CONTENTS. Xl 111 Inspector of registry offices, appointment and pages. duties of, section 128 640-641 Re^jistrar to furnish inspector with information, section 129 641 Duty of inspector on tindinjj work in arrear, section 130 641 Pay of inspector of registry offices, section 131 611 Forms, schedules A-P; registrar's covenant; affidavit of justification ; registrar's oath ; certificate respecting registry books : abstract index ; alphabetical index ; affi- davit of execution ; affidavit of execution to lien note ; certificate in lieu of affidavit ; certificate of registration ; mihute of registration ; discharge of mortgage ; discharge of mortgage by sheriff ; discharge of instrument under section 82 ; surveyor's certificate of plan ; list of registry divisions 642-651 All Act to amend the Registry Act, 1893 (57 V. c. 35) : — Mortgages "not to be registered in full," section 1; fee when registration not in full ; subsequent registry in full ; note in abstract index as to manner of registration ; discussion of enactment 653-054 Registration of notice of sale under power, section 2 ; proof for registration ; evidence of registration ; former practice as to sale papers 054-635 Improper description ; provision for registry in case of death of grantor, section 3 ; instrument to be registered on lot or plan of subdivision 055-656 Amendment to 56 V. c. 21, s. 35, section 4 656 Repeal clause added to Registry Act, section 5 656 v4 TABLE OF CASES. i'?J \ f 1 A. PAGE. Abell V.Morrison, 19 0. R. 060 (1890) 580,593 Abell V. Weir, 24 Gr. 464 (1877) 169 Re Abbott v. Medcalf, 20 O. R. 299 (1891) 141, 274 Abraham v. Abraham, 19 O. R. 261 (1890) 569 Acheson v. McMurray, 41 U. C. R. 484 (1877) 37 Ackroyd v. Smith, 10 0. B. 164 482 Adams v. Barry, 2 Coll. C. C. 290 (1845) 444 Adams v. Clntterbrick, 10 Q. B. D. 403 (1883) 31 Re Adams and Kensington, 27 Ch. D. 394 (1884) 506 Adamson v. Adamson, 12 S. C. R 563 (1886) 405, 406 Adnam v. Earl of Sandwich, 2 Q. B. D, 485 (1877) 378 Agency Company v. Short, 13 App. Cas. 799 (1888) 424 Re Agg Gardner, 25 Ch. D. 600 508 Agra Bank v. Barry, L. R. 7 H. L. 135 587, 59S Aikins v. Delmage, 12 Ir. Eq. Rep. 14 477 Re Ailesbury Settled Estates, (1893), 3 R. 704 506 Ainsley V. Balsden, 14 U. C. R. 535 . . .. . 252 Aitchison v. Coombs, 6 Gr. 643 (1858) 8 Alderson v. Elgey, 26 Ch. D. 567 (1884) 105 Alderson V. White, 2 DeG. & J. 97 (1858 436 Aldwell V. Hannath, 7 U. C. C. P. 9 (1857) 244 Re Alison, 11 Chy. D. 284 (1879) 420, 431, 436, 460 Allan V. Gott, L. R. 7 Ch. 439 453 Allan V. McTavish, 2 A. R. 278 427,441 Allcock V. Moorehouse, 9 Q B. D. 371 (1882) 39 Allen V. Edinburgh Life, 23 Gr. 306 454 Allan V. England, 3 F. & F. 49 401 Allan V. Tobias, 77 111. 171 (1875) 48 Allgard v. Skinner, 36 Ch. D. 163 479 Allhusen V. Brooking, 26 Ch. D. 565 (1884) 33 Allison V. Rednor, 14 U. C. R. 462 (1887) 359, 374 I I I xlvi TABLE OF CASES. PAIIE. Ames V. Mannering, 26 Beav. 583 (135',)) 4»i) Amey V. Card, 25 U. C. R. 507 (1866) it'JS Amsden v. Kyle, 9 O. R. 439 302 Anderson v. Oppenheimer, 5 Q. B. D. 602 (1880) 237 Anderson v. Sanderson, Holt, 591 4.50 Anderson V. Stevenson, 15 O. R. 563 (1888) 253 Anderson V. The Saugeen, 18 0. R. 355 ^ .. Ill Andrew v. Andrew, 22 W. R. 682 (1874) 344 Andrew v. Cooper, 45 Ch. D. 444 (1890) . . 472 Andrews v. Paradise, 8 Mod. 318 232 Angell V. Angell, 9 Q. B. 328, 356 (1846) 392 <4«on.. 2 Vent. 214 246 Ansley V. Breo, 14 U. C. C. P. 371 (1864) 553 Anstee V. Nelms, 1 H. & N. 225 367 Appleby v. State, 45 N. J. L. 161 539 /?e Arbib and Class (1891) 1 Ch. 601 506,508 Archbold v. Scully, 9 H. L. C. 360 (1861) . . . . 367, 393, 395. 426, 478 Archer's Case, 1 Rep. 66a 19 Archer v. Severn, 12 O. R. 615, 14 A. R. 723 (1883) 121 Arden V. Arden, 29 Ch. D, 702 (1888) 532 Arden v. Sullivan, 19 L. J. Q. B. 268 (1849, 34 Arkwright v. Gell, 6 M. & W. 203 (1839) 485 Re Armstrong, 55 L. J. Q. B. 579 (1885) 10 Armstrong v. Stewart, 25 U. C. C. P. 198 (1875) 391 Arnold v. Arnold, 2 My. & K. 365 (1834) 11 Arnold v. Cumner, 15 O. R. 382 (1888) 363, 381 Arnold V. Hind, 1 Chy. Ch. 252 211 JiV Arnott, Chattertou v. Chatterton, 8 P. R. 39 (187'J) r.»2 Arnsby v. Woodward, 6 B. & C. 519 251 Asher v. Whitlock, L. R. 1 Q. B. 1 (1865) 359, 423, 424 Ashton V. Stock, 6 Ch. D. 719 (1877) 357,375 i!e Ashwell, Johns, 112 42i; Askill V. Roach, 5 O. R. 703 (1884) SOU Aspinalls to Powell, 60 L. T. 595 (1888) 504 Astley V. Earl of Essex, L. R. 18 Eq. 290 (1874) 404 Aston V. Innis, 26 Gr. 42 (1878) 6i2 Attree v. Halve, 9 Ch. D. 337 (1878) 7 Att'y.-Gen. v. Balliol College, Oxford, 9 Mod, 412 83 V. Brantford, 6 Gr. 592 616 v. Christ's Hospital, 3 M. & K. 344 (1834) 470 v. Davey, 4 DeG. & J. 136 470 V. Davis, 18 W. R. 1132 470 V. Fish Mongers Co., 5 Myl. & Cr. 16 (1841) . . . . 458 V. Flint, 4 R. 147 (1894) 470 V. Goderich, 5 Gr. 402 616 TABLE OF CASES. xlvii FAOB. Atty.-Gen. v. Hanmer, 27 L. J. Ch. 841 (1857) 47 V. Matthias, 4 K. & J. 579 i81 V. Mayor of Coventry, 3 Mad. 368 (1818) 354 V. Midland R. W. Co., 3 O. R. 521 (1882) . . . . 384, 470 V. Payne, 27 Beav. 173 (1859) 470 V. Persse, 2 Dr, & War. 67 470 Astley V. Manchester, 2 DeG. & J. 453 (1858) 40 Austen V. Evans, 2 M. ct G. 430 (1841) 554 Austin V. Llewelyn, 9 Exch. 376 (1853) 456 Austin V. Ktory, 10 Gr. 306 (1863) 110 Avlward v. Lewis, L. R. (1891) 2 Ch. 81 139, 294 1, Backus V. Smith, 5 A. R. 341 (138 i) 485 Bacon v. Campbell, 40 U. C. B. 517 249 Baines v. Lumley, 16 W. R. 674 382 Bailey v. Appleyard, 8 Ad. & Ell. 161 (1838) 482, 483 Bailey V. Stephens, 12 C. B. N. S. (1862) 483 iJf Baird, 29 C. L. J. 622 324 Baker v. Atkinson, 11 O. R. 735 249 Re Baker, Collins v. Rhodes, 20 Ch. D, 230 (1881) 47-^ Baker v: Monk, 4 D. J. & S. 388 (1864) 91 Baker V. Weston, 14* Sim. 426 (1845) 4:}6 Baldwin v. Dingman, 6 Gr. 595 5f»() iJt Balkis Co., 36 W. R. 392 (1888) 12 Ball V. Cullemore, 2 C. M. & R. 120 401 Ball V. Riversdale, Beat. 550 C62 Bank of Montreal v. Baker, 9 Gr. 301 592 Bank of Montreal v. Stewart, 14 O. R. 482 (1887) 599 Bank of S. Australia v. Abrahams, L. R. 6 P. C. 265 (1874) . . . . 10 Banks v. Bellamy, 27 Gr. 342 (1880) 455 Banks v. Sutton, 2 P. Wms. 713 (1732) 335 Banner V. Berridge, 18 Ch. D. 254 (1881) 145,443,459 Bannon v. Frank, 14 C. P. 295 227, 228 Ri Baptist Church Property of Stratford, 2 Ch. Ch. 388 390 Barber V. Clark, 20 O. R. 522 (1890) 110 Barber V. McKay, 19 O. R. 46 (1880) 586 Barclay V. Owen, 60 L. T. 223 (1889» 447 Barclay V. Raine, 1 S. & S 449 (1882) 235 Bardick v. Garrick, L. R. 5 Ch. 233 461 Barbara V. Morris, 52 L. J. 237 (1882) 7 Re Barker, Buxton v. Campbell, (1892) 2 Ch. 495 459 Barker V. Eccles, 17 Gr. 635 (1870) 116 xl vin TABLE OF CASES. PAOE. Barkshirev. Grubb, 18 Ch.D. 616(1881) 48 Barnes V. Lumley, 16 W. R. 675 302 Barnett V Earlof Gildford, 11 Ex. 19 361 Barrett v. Birmingham, 4 Ir. Eq. R. 537 450 Barrett V. Hartley, L. R. 2 Eq. 795 (1866) 272 Je.' Bartlett, 16 Ch, D. 561 (1880) 66 Bartlett V. Franklin, 15 W. R. 1077 (1867) 145 Bartlett V. Jull, 23 Gr. 140 (1880) 139 Bartram v. Whichcote, 6 Sim. 86 (1833) 44 Barry V. Anderson, 18 A. R. 247 (1891) 217,273 Barwick v, Barwick, 21 Gr. 39 (1874) 355, 440 Bass V. Gregory. 25 Q. B. D. 481 485 Bartels V. Benson, 21 U. C. R. 143 (1861) 8 Batclielor V. Middleton, 6 Ha. 83 (ISH) 436 Be Bate, Bate v. Bate, 43 Chy. D. 600 (1890) 308 Bates V. Norcross, 14 Pick. 224 593 Bayley V. G. W. Ry. Co.,26Ch.D. 441 (1884) 487 Bayley v. Powell, 2 Vern. 361 (1698) 299 Beale ife Taylor's Case, 1 Leonard's Rep. 237 249 Beattie v. Mutton, 14 Gr. 686 623 Beatty V. O Connor, 5 O. R. 731 (1884) 150,274 Beaty V. Gooderham, 13 Gr. 317 (1867) 116 Beaty v. Shaw, 14 A. R. 600 (1888), 13 O. R. 21 . . 76, 86. 122 Beaumont V. Greathead, 2 C. B. 494 (1846) 114 Beavan v. London Portland Cement Co. [1893] , 3 R 47 . • . . 475 Beckett V. De la Cour, 11 L. R. Ir, 187 447 Beckwith v. Wade, 17 Ves. 87 (18051 353, 479 Beddington V, Atlee, 35 Ch. D. 331 (1887) 49 Beeton v. Darkin, 2 Vern. 168 (1690) 300 Beigle v. Dake, 42 U. C. R. 250 (1877) 378, 390, 417 Belamy V. Belamy, 35 Beav. 469 (1866) 11 Belcher V. Mcintosh, 8 C. & P. 720 246 Bell V. Howard, 6 U. C. C. P. 292 (1857) 368 Bell V. McKindsey, 23 U. C. R 102 (1863), 3 E. & A. 9 .. . . 241 Bell V. Walker, 20 Gr. 558 593, 603 /?« Bell, Lake V. Bell, 34 Ch. D. 402 (1886) 460 Re Bellamy, 24 Ch. D. 387 508 Bellamy V.Barnes, 44 U.C. R. 315 (1879) 252 Re Bellamy v. Metropolitan Board of Works, 24 Ch. D. 387 (1882) 27 Belyea V. Muir, 5 P. R. 273 (1870) 230 Bembury V. Fuller, 9 Ex. Ill 618 Bennett V. Bennett, 8 Gr, 436 (1860) 181,193 Bennett V. Foreman, 15 Gr. 117 (1868) .. 277 Bennett v. Herring, 3 C. B. N. S. 369 (1857) 40 Bennett v. Jones, 2 Chit. Rep. 403 (1815) 554 TABLE OF CASES. xli: PAdB. Bennettov. Bennetto, GP. K. U5 (1S74) .. 103,170,189 V. Holden, 21 Gr. 222 587 Bennison v. Cartwright, 5 B. A S. 1 4!»0 Benson V. Maude, (J Mad. 15 (1821) 444 Bernard V. Gibson, 21 Gr. 195 (1874) 308 V. Jivrvis, 1 Chy. Ch. 24 (1859) 200 V. Walker, 2 E. & A. 121 (1803) 8 Bornes v. Fellows, 35 W. R. 350 329 Bethune v, Cauloott, 1 Gr. 81 598 Beveridfje v. Creelman, 42 U. C. R. 29 (1877) 584 J?e Beyfus and Master, 39 Ch. D. 110 (188S) 510 Beynon v. Cook, L. R. 10 Ch. 389 (1875) 93 J?e Biat,'gi, 20 S. J. 417 (1882) 11 Bickell V. De la Cour, 11 L. R. Ir. 187 450 Bickertonv. Walker, 31 Ch.D. 151(1885) . 27 Bicklev. Beatty, 17 U. C. R.405 (1809) 245 Bickley v. Bickley, L. R. 4 Eq. 210 (1807) 327 Biedernmn V. Seymour, 3 Beav. 303 (1841) 328 Biehn v. Biehn, Hovey v. Ferguson, 18 Gr. 498 (1871) . . . . 159 Bigelow V. Staley, 14 U. C. C. P. 270 (1804) 124 BiR.^ar V, Bisgar, 8 P. R. 488 (1881) 201 Biggs V. Peacock, L. R. 22 Ch. D. 234 (1882) 177 Bigley v. St. Patrick's Literary Assoc. , 23 U. C. R. 395 . . . . 455 Re Bignold. 45 Ch. D. 498 (1890) 427 He Bingham and Wrigglesworth, 5 O. R. Oil (1882) . . . . 309, 500 Binns V. Nichols, L. R. 2 Eq. 250 (1800) 451 Bird V. G.E.Ry., 19 C. B.N. S. 208 (1805) 7 Birch V. Wright, 1 T. R. 378 (1876) 390, 403 Birks V. Trippet, 1 Wms. Saund. 33a 444 Birmingham Banking Co. v. Ross, 38 Ch. D. 307 (IHbS) 49 Bishop V. Howard, 2 B. & C. 100 390 lie Blachford, 27 Ch. D. 670 (1884) 427 Black V. Allan, 17 C. P. 240 241, 251 Blackburn V. Gum merson, 8 Gr. 334 587 Blackley V. Kenny, 16 A. R. 522 COO Blair v. Bromley, 2 Ph. 354, 5 Ha. 542 472 V. Nugent. 3 J. & Lat. 077 (1840) 450 Blake v. Gale, 32 Ch. D. 571 478 Blake v. Hynes, L. R. 11 Ir. 284 (1870) 327 Blakely v. Garrett, 16 U. C. R. 201 585 Blake's Case, 6 Rep. 43 ?.45 Blasdell v. Baldwin, 3 A. R 6 (1878) 199 Bleecker v. Campbell, 4 L. J. 136 252 Blewitt V. Tregonning, 3 Ad. & Ell. 554 482: TABLE OF CASES. PAOI. Blockley v. Blockley, L. R. 29 Ch. D. 252 (1885) 344 Blong V. Fitzgerald, 15 P. R. 4(57 ^1893) 257 Bloorv. Bankof U. C.,2 0. 8. 31 (1844) 141 Bobbett V. The South Eastern R. W. Co., 9 Q. B. D. 424 (1882) 357, 480 Re Bobier and Ontario Investment Co., 16 0. R. 202 (1888) . . 501, 515 Bcice V. O'Loane, 8 A. R. 167 411 Boldero V. Halpin, 19 W. R. 320 (1870) 444 Bolding V. Lane, 1 D.J. & S. 133 (1863), 4 Giff. 574 ., 426, 430 419 Boiling V. Hobday, 31 W. R. 9(1882) 41 Bolton V. Bolton, L. R. 7 Eq. 298 (1869) 2 V. London School Board, 7 Ch. D. 766 (1878) 602 Bond V. Rosling, 1 Best & S. 371 (1861) 30,31 Bondy v. Fox, 29 U. C. R. 64 586, 591 Booth V. Alcock, L. R. 8 Ch. 663 (1873) 49, 124 V. Purser, llr. Eq. R. 33 433 V. Smith, L. R. 14 Q. B. D. 318 (1884) 10, 68 2i« Booth's Trusts, 16 0. R. 429 (188S) 311 Borrows v. Elleson, L. R. 6 Ex. 128 497 Bosby V. Holder, 54 L. T. 298 4?3 Bostwick V. Phillips, 6 Gr. 427 (1858) 8 Boucher V. Smith, 9 Or. 347 504,606 Boughton V. Jewell, 15 Ves. 176 (1808) 230 Boulter v. Hamilton. 15 C. P. 125 (1804) 228 Boulton V. Blake, 12 O. R. 532 (1880) lU V. Rowland, 4 O. R. 720 (1883) 75 lie Boustead and Warwick, 12 O. R. 488 (1886) / i?e Bowen, 15 Jur. 1190 «)18 Bower v. Brass. E. T. 5 Vic. Rob. & Jos. 882 225, 835 V. Foreign & Col. Gas. Co., W. N. (1877) 222 10 Bowers V. Littlewood, 1 P. Wms. 594 (1719) 300 Bowyer v. Woodman, L. R. 3 Eq. 313 (1807) 420, 442 Boyd V. Boyd, L. R. 4 Eq. 305 (1867) 344 V. Petrie, 7 Ch. 302 106 Boyer v. Gaffield, 11 O. R. 573 (1886) 476 Boyesv. Bidale, 1 Hem. & M. 798 (1804) 299 Boys V. Wood, 39 U. C. R. 495 (1876) 419 Brace v. Duchess of ]MarIborough, 2 P. Wms. 491 (1728) . , . . 602 Bradley V. Riches, 9 Ch. D. 189 (1878) 599 Re Bradshaw and Registrar of Simcoe, 26 U. C. R. 464 (1867) . . 571 Brady v. Walls, 17 Gr. 699 590 Branty V. Lefevere, 4 C. P. D. 172 485 Braasington V. Llewellyn, 27 L. J. Ex. 297 420 Bray thway te V. Hitchcock, 10 M. & W. 497 396 Ex p. Breach, 12 W. R. 769 . . 475 TABLE OF CASES. H 502 )0, 31 (), 591 <,), 124 488 10,68 811 497 473 8 4, 600 236 228 '?44 75 t «)18 5, 835 10 300 !6, 442 344 106 476 299 419 602 599 571 590 485 420 396 475 PAOI. Bree v. Holbeck, Doii«. 655 230 Bro«a V. Dickey. 16 Or. 494 (1869) 545 Brennan V. Servis, 8 U. C. R. 191 (1856) 227 Brereton v. Hutchiuaon, 3 Jr. Cli. R. 361 469 Brethour V. Brooke, 28 0. R. 361 (18931 262 Hrowor V. Canada Permanent, 24 Or, 509 608 Re Bridge and Macrae, 30 W. R. 589 (1881) 507 Bridges v. Real Estate Loan & Dob. Co. 8 O. R. 498 (1885) . . 152, 600 BriR^s V. McP.ride, 1 Pug. A Bur. 668 571 Bright V. Campbell, 54 L. J. Ch. 1077 83 V. Larcher, 27 Beav. 130 (1859) 444 V. Legerton, 29 Beav. 60 479 V. McMurray, 1 0. R. 172 (1882) 433 V. Wilker, I C. M. & R. 211 (1834) 486, 491, 493 BriHOoe v. Dront^ht, 11 Ir. C. L. R. 2.50 486 Brislowv. Cormican. 8 App. Cas. 6U (IH7H) 8.">7 Re British Canadian L. & I. Co. and Ray, 16 O. R. 15 (1888) . . 272 British & Can. L. (V I. Co. v. Williams, 15 O. R. 369 (1888) . . . . 118 Brittain V. Kinnaird, 1 Brod. A B. 432 618 Brittlebank v. Goodwin, L. R. 5 Eq. 545 (1868) 469 Broiul V. Selfe, 11 U. R. 1036 (1863) 272 Broadbent V. Ramsbotham, 11 Ex 602 (1856) 486 Brocklehurst v. Jeasop, 7 Sim. 438 436 Bromley v. Smith, 26 Beav. 644 (1859) 93 Brook V. Badley, L. R. 3 Ch. 672 (1868) 7 Brown v. Alabaster, 37 Ch. D. 490 (1887) 48 V. Blackwell, 35 U. C. R. 239 241 V. Brown, 9 P. R. 245 (1882) 175, 182, 209 V. Hart, 10 U. C. R. 228 (1853) 229 V. McCarty, 18 C. P. 454 247 V. McLean, 18 O. R. 533 581 V. Toronto Oeneral Hospital, 23 (>. R. 603 (1893) 249 V. O'Dwyer, 85 U. C. K. 354 (1874) 228,230 Browne V. Lockhart, 10 Sim. 421 (1840) 145 Re Brown's Estate [1893] 3 R. 468, 2 Ch. 300 444 Bryan V. Cowdal, 21 W. R. 693 .. 420 Bruce v. McLay, 3 O. R. 23 (1883), 11 A. R. 489 (1884).. 540, 546, 637, 688 Bruuskillv. Wilson, 25 U.C. R. 248 (1866) 225 Brush V. iEtna Lis. Co., 1 Old. 459 (1864) Ill Bruyea v. Rose, 19 O. R. 438 (1890) 394 Bruyere V. Knox, 8 U. C. C. P. 520 592 Re Bryant and Barmingham. 44 Ch. D. 218 (1890) 510 Buchanan V. Campbell, 14 Or. 163 588 Buchanan V. Harrison, IJ. & H. 662 (1361) 11 m m TABLE OF CA.SKH. PAGE. Buckeridfie V. Ingram. 2 Veg. Jun. 657 (1795) 5 Buckley V, Beigle, 8 O. R. 85 (1885) 245 Buckley V, Wilson, 8 Gr. 566 (1861) 116 Buckworth v. Simpson, 1 C. M. & R, 834 396 Bullen V. Denning, 5 B. & C. 842 (1826) 47 V. Renwick, 8 Gr. 342, 9 Gr. 202 (18G2) 8 Buller V. Kent. 19 Johns (N.Y.) 223 544 Bunting v. Sargent, 13 Ch. D. 330 (1879) 396 Burdett V. Withers, 7 A. & E. 136 246 Burn V. London & South Wales Coal Co., W. N. (1890) 209 . , . . 108 Burnet v. Mann, 1 Ves. (Sen.) 156 (1748) 334, 341, 847 Burnham V. Daly, 11 U. C. R. 211 592 V. Garvey, 27 Gr. 80 (1879) 487 Burns v. McAdam, 24 U. C. R. 449 (18C5 ) 581 Re Burroughs, Lynn and Sexton, 5 Ch. D. 604 (1877) 512 Burroughs v. McCreight, IJ. & Lat. 290 (1845) . . .. 413, 418, 467, 468 Barrows v.! Holley, 35 Ch. D. 123 568 Burt V. Hellyar, L. R. 14 Eq. 160 (1872) 172 Burton v. Gore District Fire Ins. Co., 12 Gr. 156 (1875) . . . . 268 V. Revell, 16 M. & W. 307 (1847) 34 Re Bush and Com. of Niagara Falls Park, 14 A. R. 73 (1887) . . 3 Busschev. Alt, 8 Ch.D. 314(1878) 477 Butler V. Donaldson, 12 U. C. R. 255 (1855) 386 Buzzard V. Capel, 8 B. & C. 145 482 & Cadbury v. Smith, L. R. 9 Eq. 42 (1869) 443 Cahuac V. Cochrane, 41 U. C. R. 439 (1877) 416 i;.r partf Caldecott, re White. Mont. 55 (1830) 108 Caldwell V. Hall, 9 Gr. 110 355,437 Calloway v. Peoples, 54 Ga. 441 141 Cameron V. Gibson, 17 O. R. 233 (1889) 118 V. Leroux, 9 P. R. 304 (1882) 208 V. MoRae, 3 Gr. 311 278 V. Wait, 3 A. R. 175 (1878) 13 V. Walker, 19 O. R. 212 (1890) 433, 435, 495 Campbell v. Baxter, 15 C. P. 42 (1864) 251 V. Burley, 19 U. C. R. 204 (1860) 229 V. Campbell, 6 Gr. 600 (1858) 584 V. Campbell, 19 Gr. 254 (1872) 211 V. Campbell, 8 P. R. 159 (1879) 208 V. Corporation of York and Peel, 26 U. C. R. 635 ; 27 U. C. R. 138(1867) 634,634 TABLE OF CASES. liii FAOIi. Campbell v. Fergnson, i U. C. C. P. 114 (1855) 87, 88 V. Fox, 26 U. C. R. 631 (1807) 085,594 V. Sandford, 2 CI. & Fin. 450 (1834) 443 Canada Company v. Douglas, 27 U. C. P. 339 (1877) . . . . 359, 409 Be C. P. R. Co. V. National Club. 24 O. R. 205 (1893) 314 Canada Permanent L. & S. Co. v. McKay, 32 U. C. C. P. 51 (1881) 599 Canada Permanent L. & S. Co. v. Page, 30 U. C. C. P. 1 . . . . 586 Canada Permanent v. Teeter, 19 O. R. 158 (1889) 150, 271 Canada Southern R. W. Co. v. Lewis, 20 C. L. J. N. S. 241 . . 480 Canada Southern R. W. C. v. Niajjara Falls, 22 O. R. 54 (1892) . , 480 Canham v. Fisk, 2 Cr. A J. 126, 2 Tyr. 155 (1831) 3 Cannon v. Rimin<,'tcn, 12 C. B. 1 (1853) 406 Carlisle v. Whaley, L. R. 2 H. L. 391 590 Carlyon V. Loverin«, 1 H. ct N 784 (1857) 486 Carpenter v. Hull, 16 U. C. C, P. 90 (1806) 37 Carr v. Dunn, 9 U. C. R. 246 (1852) 225 Carr v. Fire Ass. Association 14 U. R. 487 (1887) 46, 109 Carr v. Foster, 3 Q. B. 581 489 Carrick v. Smith, 34 U. C. R. 390 (1874) 74 Carroll V. Carroll, 23 Or. 438 (1876) 163,210 V. Burgess, 40 U. C. R. 781 692 V. Robertson, 15 Or. 177 82,83 V. Williams, 1 O. R. 150 (1882) 32 Carson V. Veitch, 9 O. R. 706 (188.".) 215 Carter v. Crawley, Raym, 49t) i.'J7, 300 V. Grassett, 14 A. R. 685 (18:-*8) 124,601 V. Hibblethwaite, 5 C. P. 475 (188i')) 219 Cartwright V. Diehl, 13 Gr. 360 (1867) 206 Carver v. Richards, 27 Beav. 488 275 Gary v. Stephenson, 2 Salk, 421 408 Casey V. Jordan, 5 Gr. 467 (1856) 585 Ri' Cash and Metropolitan Dis. Ry. Co. 13 Ch. D. 007 (1880) . . 510 Casselnuxn V. Casselman, 9 O. R. 448 (lS85i 260, "Jiil Cave V. Roberts, 8 Sim, 214 (1836) 303 Caverhill V. Orvls, 12 U, C. C. P. ;;92 (1862) 34,37 Cayley V. McDonald, 14 Gr. 510 (1868) 8 Cliadwick V. Broadwood. 3 Beav. 311; (1810) 393 V. Turner, L. R. 1 Ch. 310 (1866) 597 /•:.i- parte Chamberlain, 14 Ch. D. 328 497 Chamberlain V. Clark, 28 Gr. 456 (18-^1) 449 Chandler V. Pocock. 15 Ch.D. 491 (1880) 8 Chantrell v. Chantrell, 37 L. T. N. S. 220 (1><78) 340 Chapman v. Beecham, 3 .\. & E. N. S. 72 5 (1842) 131 V. Corpe, 41 L. T. 22 0«79) 432 Ci.appol V. Rees, 1 D. M. it G. 393 427 i: I liv TABLE OF CASES. FAOE. Charlton v. Durham, L. R. 4 Ch. 433 (1860) 443 Charter V. Trevelyan, 4 L. J. N. S. Ch. 209 (1844^ 477 Chasemore v. Richards, 7 H. L. C. 349 486 Chatfield v. Cunninj^ham, 23 O. R. 153 (1893) 272, 275 Cherry V. Morton, 8 Gr. 402 (1860) 8 Chetham v. Hoare, L. R. 9 Eq. 571 (1870) 475 Chew V. Holroyd, 8 Ex. 249 (1852) 5 Chilesv. Calk, 4Bitt. (Ky.) 534 452 Chinnery v. Evans, 11 H. L. C. 134 (1864) 430, 431, 445, 446 Re Chisholm & Corporation of Oakville, 12 A. R. 235 . . , . 618, 619 Cholinondeley V. Ashburton, 6 Beav. 86 (1843) 303 V. Clinton, Turn. & Rubs. 118 (1823) 393 V.Clinton, 2 Jac.&W.l (1820) 328 Christian V. Devereux, 12 Sim. 271 (1811) 443 Christie v. Inland Revenue, L. R. 2 Ex. 40 (1866) 12 Re Christmas, 33 Ch. D. 332 (1886) 7 Church V. Brown, 15 Ves. 263 (1808) 224 Chuvcher v. Martin, 42 Ch. D. 312 460 i?e Cigala, 7 Ch. D. 351 (1877) 11 City Bank v. Barrow, 5 App. Cas. 664 441 Clark V. Bogart, 27 Gr. 450 (1880) 234, 593 V. Clark, 8 P. R. 156 (1879) 176,208 V. Elphinstone, 6 App. Cas. 164 (1880) 357 V. Harvey, 16 O. R. 166 (1888) 218, 223 V. Malpas,4D. F. tt J. 401 (1802) 91 V. McDonnell, 200. R. 564 (1891) 464 v. Robertson, 8 U. C. R. 370 (1852) 226, 228, 229 V. Woodruff, 83 N. Y. 518 277 Claiki V. Blake, 2 Bru. C. C. 321 (1758) 335 i?e Clarke andJChamberlain, 18 O. R. 270 (188!') 579 Clarke V. Clarke, I. R. 2 C. L. 393 423 V. G. T. R. 35 U. C. R. 57 (1874) 253 V. Henderson, 14 Ch. D. 348 430 V. Little, 5 Gr. 363 (1856) . 8 V. Samson, 1 Ves. (Sen.) 100 (1748) 42 ifc Clay and|Tetley, 10 Ch. D. 3 (1880) 506 Clayton v. Corby, 2 g. B. 824 (1842) 493 Clements V. Martin, 21 U. C.C. P. 512 (1871) 359.409 /?e Coates to Parsons. 34 Ch.D. 370(1886) 506 Cobb V. Dyer, 19 Me. 494 581 Cockburn V. Edwards, 18 Ch. D. 457 (1881) 446 Cockerell v. Cholnieley. 1 Rus. & My. 418 (1830), 1 Clark & Fin. 60 64 Coffin V. Danard, 24 U.C.R. 267 (1865) 37 v. N. A. Land Co., 21 O. R. 80 (1891) 245 Colbrooke v. Tickell, 4 Ad. & Ell. 916 (1836) 6 TABLE OF CASES. Iv PAOI. 443 477 486 272, 275 8 475 5 452 445, 446 18, 619 303 . 393 328 . 443 12 7 224 460 11 441 234,593 176,208 357 218,223 91 464 228, 229 277 335 579 423 253 430 8 42 506 581 446 64 37 245 5 PAOB. Coleman V. Hill, 10 0. R. 172 (1855) 258 Ec Coleman and Jarrow, 4 Ch. D. 165 (1876) 507 Coles V. Trecothick, 9 Ves. 250 (1804) 460 Re CoUard and Duckworth, 16 O. R. 737 (1889) 64 College of St. Mary Magdalen v. Atty.-Gen., 6 H. L. C. 210 (1857). . 459 Collingwood V. Pace, 1 Ventr. 413 331 Collver V. Shaw, 19 Gr. 599 586 Colonial Bank of Australasia v. Willan, L. R. 5 P. C. 417 .. .. 618 Colquhoun V. Brooks, 14 App. Ca. 493 (1889) 11 Commissioners of Charitable Don. v. Wybrants, 2 J. & Lat. 182 .. 470 Commissioners of Sewers v. Glasse, L. R. 19 Eq. 134 (1874) .. 485 Compton V. Pope, 1 P. E. I. 181 (1861) 80 Confederation Life Asso. v. Moore, 6 Man. L. R. 162 (1889). . . . 78 Connell V. Powell, 13 C. P. 91 249 Constable v. Nicholson, 14 C. B. N. S. 230 (1863) 483 Cook V. Edwards, 10 O. R. 341 247 ife Cooke, 4 Ch. D, 454 (1876) 506 Cooley V. Smith, 40 U. C. R. 543 (1877) 603 Coombs V. Her Majesty's Proctor, 16 Jur. 820 (1852) 303 A'e Cooper and Allen, 4 Ch. D. 802 (1876) 508,512 Cooper V. Barber, 3 Taunt. 99 (1810) 481 Cooper V. Vesey, 20 Ch. D. 611 (1882) 591 V. Emery, 1 Ph, 389 (1844) 497 V. Forbes, 2 Bro. C. C. 63 335 V. France, 19 L. J. Ch. 315 (1841) 327 V. Hamilton, 45 U. C. R. 502 (1881) 399,402 Corbett v. Hill, L. R. 9 Eq. 671 (1870) 2 Core V. Ontario Loan & Debenture Co., 9 O. R. 236 (1885) . . . . 600 Corey v. Taylor, 2 Vern. 302 (1693j 307 Corham v. Kingston, 17 0. R. 432 (1889) 110, 111, 132 Ite Corlass, 1 Chy, D. 460 (1875) 335 Cormack V. Dodds, .32 U. C. R. 625 241 Cornish v. Gest, 2 Cox 27 180, 186 Corporation of Middlesex v. Smallman, 20 O. R. 487 (1891) . . 639 Cosbie V. Sugrue, 9 Ir. L. R. 17 405 Counden v. Clarke, Hobart 29 328 County of Middlesex v. Smallman, 19 O. R. 351 (1890) . . . . 538 Court V. Walsh, 1 O. R. 170 (1882) 420, 440 V. Walsh, 9 A. R. 294 (1883) 451 lie Coward and Adams. L. R. 20 Eq. 179 (1875) 507, 515 Cowper V. Cowper, 2 P. Wms. 7.34 (1734) 332,335 Cox V. Dolman, 1 D. M. A G. 692 (1852) 426 /iV Craig, 10 P. R. 33 (1883) 511,514 Cranch V. White, 1 Biug N. C. 414 542 Crawford V. Bugg, 12 O. R. 8 (188(5) 243,244,245 wmmmmmm Ivi TABLE OF CASES. FAOI. Credland v. Potter, L. R. 18 Eq. 350 ; 10 Ch. 8 (1874) , . , . 12, (iOtJ Re Crerar and Muir, 8 P. R. 66 (1879) 275 Crews V. Taylor, 56 Tex. 461 33D Crispin v. Doglioni, 3 S. & T. % (1863) ; L. R. 1 E. & I. A. (1866) 287 Crocker v. Sowden, 33 U. C. R. 397 (1874) 37 Crofts V. Middleton, 2 K. & J. 194 (1856) 261 Cronk V. Cronk, 1 U. C. R. 471 (1841) 190 Cronk V. Cronk, 6 O. S. 332 (1842) 177 lie Cronyn, Kew and Betts, 8 P. R. 372 (1880) 275 lie Croskerry, 16 O. R. 207 (1888) 275 lie Cross, Haislon and Tenison, 20 Ch. D, 122 (188->) 478 Crowther v. Cawthra, 1 O. R. 128 (1882) 299 Crozier v. Tabb, 38 U. C. R. 54 (1876) 250 Cruso V. Bond, 1 O. R. 384, 9 P. R. HI (1881) . . . . I4'i, 151, 277, 278 Culley V. Doe, 11 Ad. & Ell. 1008 411 Cumberland v. Kearns, 17 A. R. 281 (1890) 236, 237 Cummins V, Fletcher, 14 Ch. D. 711 Ill Cunningham V. Foot, 3 App. Ca. 974 (1874) 459 Cunynghame v. Thurlow, 1 Russ. & My. 436 (1832) 62 Cushingv. McDonald, 26 U.C. R. 609 (1867) 391 Cuthbert v. Robinson, 51 L. J. Ch. 238 (1881) 51 0. Dack V. Currie, 12 U. C. R. 334 (1854) 225,235 Dainty V. Vidal, 13 A. R. 47 (1886) 37 Dalgleish V. Conboy, 26U. C. C. P. 264 (1876) 12 Daltonv. Angus, 6 App. Cas. 740 (1881) 485 a Dalye v. Robertson. 19 U. C R. 411 (I860; 250 III re Dames and Wood, 29 Ch. D. 626 508 Daniels V. Davidson, 9 Gr. 173 (186-j) 587 V. Davidson, Ki Yes, 252 401 Dare v. Heathcote, 25 L. T. Ex. 245 489 Dartmouth V. Spittle, 19 VV. R. 444 475 Daniel V. Anderson, 31 L. J. Ch. 610 487 Dashwood y. Ayles, 55 L. J. Q. B. 10 (1885) 4 Daubuz V. Lavington, 13 Q. B. D. 347 (1881) 133 Dauphin v. Lesperance, 14 C. P. 133 (1864) 230 iiV David, 43 Ch. D. 27 (1889) 7 David V. Sabin, 1893, 1 Ch. 523 59 Davidson v. McKay, 26 U. C. R. 3)0 (1867) 561 Davies' Case, 3 Mod. 246 483 Davies v. Dewes, 3 P. Wms. 50 (1740) 300 TABLE OF CASES. Ivii FAGI. 12, (JOtJ .. 275 539 I 287 37 .. 2m I'JO .. 177 275 . . 275 478 . . 29!) 250 277, 278 411 230, 237 111 459 02 391 51 5, 235 37 12 485 250 508 587 401 489 475 487 4 133 230 7 59 5(il 483 300 FAOB. Davies v. Lowndes, 5 Bing. N. C. 163 (1833) 333 V. Vernon, 6 Q. B. 448 543 V. Williams, Itj Q. B. 583 489 7?e Davis ri891' 3 Ch. 119 459 Jie Davis. 22 Q. B. D. 193 (1888) 10 iiV Uavis, 27 Gr. 199 (1880) 591 He Davis and Cavey, 40 Ch. D. 608 (188^) 505, 511, 514 Davis V. Chanter, 2 Phiil. 545 294 V. Henderson, 29 U, C. R. 353 (ISiHt) . . 357, 360, 365, 366, 372 V. Pitchers, 21 C. P. 516 (1875) 253 V. Van Norman, 30 U. C. R. 437 575 Dawkins \ Penrhyn, 6 Ch. D. 324; 4 App. Cas. 51 .. 420, 439, 459, 475 Day V. Day, 31 Beav. 270 (1862) 115 v. Day, L. R. 3 P. C. 761 (1871) 331, "uV.K 400, 401 V. Riynolds, 23 Hun. (N. Y.) 131 539 Dean v. Thwaite, 21 Beav. 021 474 and Chapter of Windsor's Case, 5 Rep. 24 245 and Chapter, St. John's v. MacArtliur, 3 W. L. T. 179 (1892) 1 16 of Ely V. Gayford, 16 Beav. 561 294 Debenham V. Digby, 21 W. R. 359 (1873) 35 ;;« Defoe. 2 O. R. 623 (1882) 308,404 Delaney v. C. P. R. Co., 21 O. R. 11 (189]) 430, 415 Delves v. Delves, L. R. 20 Eq. 77 (1875) 6f. Denison V. Chew, 5 O. S. 161 11836) 368 Deiin V. Cartwrit,'ht, 4 East 29 (1803) 3'.i6 Denuet v. Atherton, L. R. 7 Q. B. 326 (1872| 231 ;>VDennie, 10 U. C. R. 104 (1852) r.H AV Dennis, 14 O. R. 267 (1SS7) 177 Deny's v. Shnckbrugh, 4 Y. A- C. 42 378 Duvereux V. Kearns, 11 P. R. 452 (18861 167 Devine v. Holloway, 14 Moore P. C. 290 497 Devonshire V. O'Connor, 24 Q. B. D. 476 (1890) 483 Dey V. Dey. 2 Gr. 149 294 Dil)b V. Walker [1893] 3 R. 474 417 Dickin.son V. Teesdale, 1 D. J. d- S. 52 (1862) 447, 4.>9 Dilke V. Doaj,'las, 5 A. R. 63 (1880) 121, 12.t, 577 Dillon V. Cruise, 3 Ir. Eq. R. 82 444 Dimmock V. Hallett, L. R. 2 Ch. 21 (1866) (i7 Discher v. Canada Permanent L. A S. Co., IS O. R. 273 (IS8'.») . . 275 Dixon V. Gayfere, 17 Beav. 421 124 Dobson V. Sootheran, 15 O. R. 15 (1887) 252 Dodds V. Thompson, L. R, 1 C. P. 133 (1865) 4 l)o.i;,'e V. Clapp. 8 P. R. 388 (1880) 208 7J(U' V. Blakeway, 5 C. ct P. 563 .. .. 404 V. Bliss, 4 Taunt, 725 405 .1 I I M .11 as 1 ••• Ivm TABLE OF CASES. PAOR. Doe V. Burt, 1 T. R. 701 (1787) 2 V. Carter, 9 Q. B. 863 401 V. Charaberlaine, 5 M. & W. 14 397 V. Cook, 7 Bing. 34(> 424 V. Coombes, 9 C. B. 714 409 V. Cooper, 1 M. & G. 135 393 V. Crago, C. B. 90 390 V. Danvers, 7 East, 299 404 V. Dodd, 5 B. & Ad. 689 396 V. Dyeball, Mood. & M. 346 424 V. Edmonds, 6 M. & W. 295 (1840) 420 V. Ellerbrook v. Flynn, 1 C. M. & R. 137 (1834) 395 V. Emonds, 6 M. A W. 295 (1840) 416 V. Geikie, 5 Q. B. 841 396 V. Giles, 5 Bing. 421 (1829) 444 V. Green, 9 Ad. & Ell. 658 (1839) .. .. 390 V. Horrocks, 1 Car. & K. 130 411 V. Lawley, 13 Q. B. 954 4i5 V. Lightfoot, 8 M. & W.564 (1841) 444 V. Long, 2 C. & P. 773 415 V. Martin, 1 Car. & M. 32 424 V. Pasquali, Peake, 190 393 V. Phillips, 10 Q.B. 130 382 V. Porter, 3 T. R. 13 395 V. PuUen, 2 Bing N. C. 749 (1830) 396 V. Prince, 9 Bing. 356 401 V. Rock, 4 M. & G. 32 (1812) 404 V. Smaridge, 7 Q. B. 957 . . . . 396 V. Thomas, 6 Exch. 854 401 V. Turner, 7 M. & W. 220 401 V. Vanlell, 7 CI. & F. 895 (1840) 331 V. Watts, 7 T. R. 83 390 V. Well, 10 Ad. A Ell. 427 (1839) 393 V. Williams, 5 Ad. & Ell. 297 (1836) 439 V. Wood, 14 M. cfe W. 082 396, 395 (/. Adkins v. Atkinson, 4 O. S. 140 585 d. Ambler v. Woodbridge, 9 B. & C. 37t) 244 (/. Ausman v. Minthorne, 3 U. C. R. 42-^ (1847) . . . . 354, 418, 400 (I. Baddeley v. Massey. 17 Q. B. 373 (18 Ji) . . . . 391, 435, 440 (/. Baker V. Clark, 7 U. C. R. 44 (1850) H (/. Beckett v. Nightingale, 5 U. C. R. 518 (1819) . . . . 362, 308 (/. Blackburn, 1 Mood. A Rob. 547 (1830) 3'iO 4 TABLE OF CASES. Ixiii PAoa. I. 3C7 108 ', 428, 429 ., 343, 340 .. 453 59 .. 153 869 .. 308 116 . . 598 467 . . 532 37 . . 228 , 243, 247 . . 115 227 . . 246 114 . . 598 28 . 44 3 . 328 90 . 301 6 101 . 483 3 62, 63 . . 23() 8 J .. 444 251 1 477, 495 444 ■| . . 20 M 81 1 427, 453 i :« PAoa. Teene V. Grafton, 2 Biiig. N. C. 618 (1836) 3 ?ennerv.Duplock. 2 Bing. 10(1821) 393 Fer-iison v. English & Scottish Inv. Co., 8 P. R. 404 (1881) . . 143 V. Ferguson, 28 Gr. 381 (1881) 459 V. Hill, 11 U. C. R. 533 (1854) 532 V. Livinfjston, 9 Ir. Eq. R. 202 426 V. Troop, 17 S. C. R. 527 (1889) 37 V. Whelan, 28 U. C.C. P. 116(1877) 418 V. Weissor, 10 O. R. 23 (1885), 11 O. R. 88 613 Ferrass V. Macdonald, 5 Gr. 310 588,599 Ferrier v. Moodie. 12 U. C. R. 379 (1854) 369 Fettiplace v. Gorges. 1 Ves. 49 (1799) 307 Filman v. Filman, 15 Gr. 643 (1869) 193, 343 Finch V. Gilray, 16 A. R. 484 (1889) 245 V. 7uke3, (1877) W. N. 211 515 Fink V. Patterson, 8 Gr. 417 (1860) 8 Finlaysonv. Mills, 11 Gr. 218 (1865) 116 i?(; Fitzraaurice, 15 Ir. Ch. R. 445 447,450 Fitzpatrickv. Wilson, 12 Gr. 440(1866) 180 Fisher v. Bishop, 17 N. S. R. (5 R. & G.) 451 548 lie Fisher and Haslett, 13 L. R. Ir. 546 63 Fletcher v. Rodden, 1 O. R. 155 (1882) 3.52, 355, 440 /Je Fleury, 9 P. R. 87 (1881) 208 Flight V. Thomas, 11 A. & E. 088 ; 8 CI. & F. 231 . . . . 483, 487, 488 In re Flint and Jellett, 8 P. R. 361 (18S0) 150 iJd Flower, 27 Ch. D. 592 (1884) 580 Flower v. Duncan, 13 Gr. 242 251 Foley V. Foley, 26 Gr. 463 (1879) 364 Foott V. Rice, 4 0. R. 94, 12 A. R. 351 (1885) 84 Forster v. Patterson, 17 Ch. D. 132 (1881) 355, 437, 495 /?f Foster, 1 Chy. Ch. 104 171,191,198 Foster v. Beall, 15 Gr. 244 599 Foster V. Emerson, 5 Gr. 135 (1854) 159 ;?« Foster and Lister, 36 L. T. 582 (1876) 506 Foster V. Reeves, L.R. 1892, 2 Q. B. 255 31 Forbes V. Moffatt, 18 Ves. 334 (1811) 118 Fordv.Ager, 2 H. & C. 279 (1863) 449 V. Allan, 15 Gr. 565 427, 430 V. Grey, 1 Salk. 285 ...... 410 /If Ford and Hill, 10 Ch. D. 365 (1879) 505 Forge V. Reynolds, 18 C. P. 110 241 Forsyth V. Mcintosh, 9 C. P. 492 (I860) 228 Fox V. Tabault, 33 La. Ann. 32 5.39 Fram V, Fram, 12 P. R. 185 (1887) 166,179 Francis V. Grover, 5 Ha. 39 426,459 ^;'-H Ixiv TMiLH (>/•' CASES. Ill VMilt. Fraser V. Fraaer, 17 U. C. C. P. 70 (18(51) 44« V. Gunn, 27 Gr. •;:M1H7'J) 415,455 V. Nanle, 1<5 O. R 241 mi V. Sutherland, 2 Gr. 442 580 Frazer v. Municipality of Stortnont, 10 CI. C. R. 8i) (1853) . . 535, 530 Fredericks V. Howie, 1 H. ifc C. 381 (1802) 4 Freeman V. Edwards, 2 Exch. 732 (18JH) VA'l Freemantle V. Freomantle, 1 Cox, 248 (178(5) aiJo 7ii' Frisby, 43 Ch. D. 10(5 (1889) 441 Frith and Osborne, 3 Ch. D. f)18 (187(5) 50(5 Frontenac Loan Co. V. Hyaop, 21 O. R. 577 Ill Fry V. Lano, L. R. 40 Ch. D. 312 (1888) 8;>. !)3 Fuldon V. Ashworth, L. R. 20 E(j. 410 (1875) 337 Fullwood V. FuUwood, 9 Ch, D. 17f) (1878) 478 Fulton V. Creai^h, 3 -T. ck Lat. 32i» (184(!) 497 Furnesa V. Mitchell, 3 A. R. 500 1(55 Fursden V. CH% 10 M. & W. 572 (1842) 418 ft. Galbraith v. Fortune, 10 U. C. C. F. 109 (1851) 32, 241 V. Irving,', 8 O. R. 751 (1885) 35 Gale V. Abbott, 10 \V. R. 748 490 Gall V. Bush, 8 Gr. 360 601 Gamble v. McKay. 7 U. C. C. P. 319 (1858) 224, 552 V. Rees, 6 U. C. R. 396 (1850) 229 Gardner V. Williamson, 2 B.iV: Ad. 336 (1831) 34 Garrard v. Tuck, 8 C. B. 231 (1849) 382, 403, 468 Gaskill V. Gaskill, 6 Sim. 643 169 Gaskin V. Phcenix Ins. Co., 6 All. 429 (1866) Ill Gault V. Shepard, 14 A. K. 209 (1886) 36 General Finance Co. v. Liberator, 10 Ch. D. 15 (1878) 261 Gibboney v. Gibboney, 36 U. C. R. 236 (1875) 36 Gibbons V. Snape, DeG. J. & S. 022 8H Gibbs V. Sidney, 49 L. T. N. S. 132 588 Gibson v. Boulter, 3 C. P. 407 226 Giffard v. Williams, L. R. 5 Ch. 546 (1870) . . i ; . Gilleland v. Wadsworth, 1 A. R. 82, 23 Gr. 517 . . . . 593 Gillespie V. Van Egmondt, 6 Gr. 533 (1858) .... 14 Gilliat V. Gilliat, L. R. 9 Eq. 60 (1869) ».' Re Gilmour and White, 14 O. R. 694 (1887) 272 Gilchrist and Island, 11 A. R. 537 (1886) . . . . 12, 1^ 7, 271, 273 TABLE OF CASES. Ixv PAUB. . . 44l< 415,455 . . f.03 ilOU, 580 530 4 , 132 3^5 . 441 50() . Ill 8',», 1(3 . 337 478 . 497 105 , 418 32, 241 35 . . 400 604 224, 552 2'2\) .. 34 2, 403, 408 . . 1011 111 30 261 .. 36 83 .. 588 226 593 .. 14 .. 272 271, 273 PAOK. fOivinav.Davrill, 27 Or. 502(1880) 500,514 Glassv. Freckleton, 10Gr.470(lH04) 8 Oledhill V. Hunter, L. R. 14 Ch. D. 41)2 (IHHO) 173 \ne Gleiiny hiuI Hartley, 25 Cli. D. Oil (IHHI) 500 Gleiiton V. Sauiulers, 53 L. T. 434 (IhHO) 503 Gloun and Miller, 23 Ch. D. 320(1880) 508 Glover v. Andrew, 1 And. 7 48 V. Coleman, L. R. 10 C. P. 121 (1874) 490 Godolphin V. Abingdon, 2 Atk. 57 (1740) 328 ii/!Goff, 8 P. R. 1)5(1870) 495 Goffv. Lister, 13 Gr. 406; 14 Gr. 451 (1808) 585 i,V Golds and Newton, 52 L. T. 321 511 Goodall V. Hkerrat, 3 Drew, 210 456 Goode V. Job, 28 L. J. Q. H. 1 418 Gooderham V. The Traders' Bank. 10 O. R. 43S (18St8) 105 ]!,■ Goodman's Trusts, L. R. 17 Ch. D. 200 (issl) 299 Goodsvin V. Williams, 5 Gr, 531) (lS5i")) 14 Goodwith V. North, 11 J. B. Moo. 491 278 Gordon V.James, 30 Ch. D. 249 (1895) 27 Axpur/tfGorely. 4D. J. it 8. 477 (1804) 109 Gou«h V. McBride. 10 U. C. C. P. 106 (1880) 553 Gouinlock v. Manufacturers' and Merchants' Mutual Ins. Co., 43 U. C. R. 563 (1878) 46 Gould V. McGregor, 13 N. S. R. (1 R. & G.) 339 571 Gover V. Davis, 29 Beav. 222 (1800) 11 Governors of Magdalen Hospital v. Knotts, 8 Ch. D. 727 (1878) . . 405 Gowland V. De Faria, 17 Ves. 20 (1810) 92 Graham v. Baker, 10 C. P. 420 220, 228 V. Chalmers, 2 L. J. N. S. 09 569 V. Leslie, 4 C. P. 170 (1855) 226,228 V. Long, 10 O. R. 248 249 V. Ross, 6 0. R. 154 (1883) 279 Grand Hotel Co. v. Cross, 44 U. C. R. 153 (1879) 18, 481 Grant v. Grant, 9 P. R. 211 (1882) 178 V. Lynch, 6 U. C. C. P. 178, 14 U. C. K. 148 (1857) .... 37 V. O'Hara, 46 U. C. R. 279 (1881) 402 V. People's Loan * Deposit Co., 17 A. R. 85 430 Grantham V. Elliott, 6 O. S. 192 (1842) 245 Gray V. Coughlin, 18 S. C. R. 568 (1891) 588 lie Gray and Metropolitan Ry. Co., 44 L. T. 507 (ISSl) . . . . 505, 508 Gray V. Chaplin, 2 Rass. 126 478 V. Ingersoll, 16 O. R. 194 (1888) 637, 638 V. Richford, 2 S. C. R. 442 (1878) . . . . 300, 304, 307, 400, 107, 421 V. Smith, 43 Ch. D. 208 (1889) 7 .£■ iJ •m h XVI TAIII.E (iF CASES. FAOB. Re Gr tydou and Hammill, 20 0. R. 199 (1890) 230 Grayford v. Mofifatt, L. R. 4 Ch. 138 487 he Great Northern Ry. Co. and Sanderson, 25 Ch. D. 788 (1884) 506, 508, 515 Great Western Ry. Co. v. Lutz, 32 U. C. C. P. ICl (1831) .. .. 409 G. W. Ry. Co. V. Swindon, L. R. 9 App. Cas. 808 (1884) 6 Re Greaves, 23 Ch. D. 313 (18s3) 8 Greaves v. Greenwood, 2 Ex. Div. 298 (1877) 333 Gregor v. Parker, 1 Camp. 394 450 Gregson v. Hindley, 10 Jur. 383 (1846) 440,447 Re Green and Artkin, 14 O. R. 697 (1887) 220, r;73 Green v. Green, 2 P. E. I. 8 (1874) 46 V. Hamilton Prov. Loan Co., 31 C. P. 574 (1881) .. .. 275 v. Ponton, 8 O. R. 473 (1884) 544 Greenshields V. Bradford, 28 Gr. 290 (1881) 463,467 Greenslade v. Dare, 20 Beav. 294 (1855) 27 Greenway v. Bromfield, 9 Ha. 201 (1957) 428 Greet v. Citizens' Ins. Co.. 27 Gr. 121 (1879) 268 Grenfell V. Girdlestone, 2 Y. & Coll 676 451 Grey V. Ball, 23 Ex. 390 599, 600, 60:i V. Coucher, 15 Gr. 419 .. 599 Griffith V. Brown, 5 A. R. 313 (1880) 37s Guest V. Smy the, L. R. Ch. 551 (1870) 6(i Guelph V. CanadaCo., 4Gr. 632 :. 616 Guidot V. Guidot, 3 Atk. 256 (1745) 8 Gumm V. Tyrie, 4 B. < Hamilton v. Lyons, 5 O. S. 503 545, 670 £.r /wr^tf Hammond, 9 Jur. 358 (1845) 47 Hammond V. Hill, 1 Com. 180 233 PAOB. 23t; • • 487 1884) 6.508 515 • • 40'J • 6 8 • • • 333 , • 4')0 . 440 i-H 220 f;73 • • • 46 275 • 544 463 467 , , 27 • . 428 • • 268 , , 451 1), 600 60;{ • • 5! lit , , 37s • • • 66 ; . 610 . ■ 8 •• 277 472 .. 208 •M) 4',i:i . . 4 Si) L'Ol . . 50S 545, 670 .. 47 23» TABLE OF rA.SES. ixvn PAGE. amnwnd v. McLay, 26 U. C. R. 434, 28 U. C. 11. 463 (1860) . . 537 iHiimpson V. Fellows. L. II. 6 Eq. 575 (1S()8) 135 iHantii V. Power, 8 Ir. L. 505 450 ^Haiimer v. Chance, 4 D. G. A J. 631 (1865) 491 Haniner v. Chance, 4 D. J. & S. 626 482 Himmer v. Fli«ht, 35 L. T. N. S. 127 491 Ihurv V. Anderson. 13 C. P. 467 (1863) 228 Hiirconrt V. White. 28 Beav. 309 (1860) 44.3 ];,' Haryreaves and Thompson. 32 Ch. D. 4.59 (1S8(.) 505. 509. 510. 511 1 larkness v. Conway. 12 Gr. 449 (1866) . . . . " 206 Hnrley V. KinR. 2 C. M. & H. 18 '..43 Hailock V. Ashberry. 19 Ch. D. 539 (1882) . . . . 355. 440. 445. 446 In re Harman and U. R. Ry. Co . 24 Ch. D. (188H) 130, 505 Hariner V. Priestly, 16 Beav. 571 (1853) 144 Harper V. Culbert. 5 O. R. 152 (1883) 141,275 llarrintjton V. Ward, 9 Mass. 151 544 7>V Harris. 15 Ch. D. 561 (1880) 7 Harris V. De Pinna, 33 Ch. D. 251 480 V. Meyers, 7 L. J. 243 8 V. Mudie, 7 A. R. 418 (1882) 362, 363, 369. 411 V. Prentiss, 7 A. R. 414 391 V. Smith, 40 U C R. 33 (1877) 51 Harrison V. Armour, 11 Gr. 30.^ 601 V. Brega. 20 U. C. R. 324 (1861) 545, 546. 550 V, I)i«nan. 2 Dr. tt War. 295 428 V. Guest, M H. L. C. 481 (1861) 91 V. Harrison, 58 L. J. P. D. it A. 28 {ISri'*} 10 Hart V. Bown, 7Gr. 97 (1859) .. 228 V. McQuestin, 22 Gr. 133 (1875) 110 Harty V. Appleby, 19 Gr. 205 (1872) -|75, .-)87 V. Davis, 13 Ir. L. R. 23 410 Harvey V. Fer{?uson, 9 U. C. R. 431 241 ' V. Smith, 2 E. & A. 480 (1H64) 95 Hastings V. Ponton, 5 A. R. 546 (1880) 625,634 Hattield v. Minet. L. R. 8 Ch. D. 136 (1875) 345 Hawes, ex p. re Byrnes Estate, 15 Ir. L. U. 1h;i, 373 606 Hawke V. Millikin, 12 Gr. 236 (1866) H Hawkins V. Spencer, 1 Sim. A Stu. 2.57 (1823) 333 Hawksbee V. Hawksbee, 11 Hare, 230 367 Hay V. McArthur, 8 P. R. 321 (1886) 150 Hayden V. Williams, 7 Bing. 168 418 Haynes v. Gillen, 21 Gr. 15 593 Hay^arth V. Wearinsi. L. R. 12 Eq. 320(1871) 90 Healey V. Daniels, 14 Gr. 633 (1868) 8 Heath V. Crealock, L. R. 10 Ch. 22 (1874) 261 - -a .ji Ixviii TABLE OF CASES. Heath v. Pugh, 7 App. Cas. 235 (1882) 433, 435, 440 Hebblethwaite V. Peever, [1892; 1 Q. B, 124 442 Hecldy V. Wheelhouse, Cro. Eliz. 591 49 HeMan V. Johnson, 2 Taunt. 147 397 Heiinand v. More, 1 Eden, 327 532 Heley v. The Canada Co., 23 C. P. 20, 597 252 Hemming v. Blanton, 42 L. J. C. P. 158 449 lie Henderson and Spencer. 8 P. R. 402 505, 507, 509, 512 Henderson V. E88on, 2 Phil. 308 (1874) 414 V. Harris, 30 U. C. R. 360 (1870) 409 V. Kerr, 29 Gr. 91 451 Hendricks V. Hendricks, 13 P. R. 79 (1889) 20i< Henry v. Smith 2 Dr. & War. 281 (1842) 4.30, 431, 440, 443 lie Herbalt, 57 L. J. Ch. D. 421 (1887) 504 Herclimer v. Elliott, 14 O. R. 714 (1887) l.VJ /fc Hetling's and Mer ton's Contract, [1893] 2 R. 543 .. .. 507,511 Heward v. O'Donohoe, 19 S. C. R. 341 (1891) IGO, 4t)tl V. Wolfenden, 14 Gr. 188 (18G8) 583 J?c Hewish, 17 0. R. 4.54 (1889) 203 Hewlins V. Shippam, 5 B. &C.221 4S2 Heyden v. Castle, 15 O. R. 257 (1888) 24o Heyland V. Scott, 19 U. C. C. P. 170 (1869) 371,375,407 Heywood v. Sivewrij^ht, 8 P. R. 79 ITJ Hibbert v. Hibbert, L. R. 15 Eq. 372 (1873) 337 Hibblewhite V. McMorine, 6 M. rjr^^ Hilman, lOCh. D. 625 (1879) 1- Himo V. Leadley, /iV, 13 P. R. 1 (1889) 'i'l' Hirons V. Amherstburg, 11 U. C. R. 458 (1854) •')'■ Hiscott V. Berringer, 4 Gr. 296 (18.54) 177 Hickman V. Upsall, 4 Ch.D. 144(1876) ^t' Hodle iHodaor f^Jle Hod jHogan fllollanc Holder! Holford Hollan<.l BHoUins [Hollywc I Holmes PAOE. 33, 435, 440 . . . . 442 49 . . . . 397 . . . . 532 25-J . . . . 449 507, 509, 512 , .. 414 . . . . 409 , .. 451 . . . . 208 431,440,443 . . . . 504 . . . 152 507, 511 . . 160, 4t)t) . . . 583 . . . . 203 . . . 482 . . . . 245 371, 375, 467 . . 175 337 .. 11 4ti4 .. 47'^ 496, 497 .. 48 TABLE OF CASES. Ixix PAOE. obson V. Middleton, 6 B. & C. 295 (1827) 225 Uf Hobbs, Hobbs v. Wade, 36 Ch. D. 553 (1887) . . 412, 415, 461, 495 Bobbs V. Ontario Loan Co., 18 8. C. R. 483 (1890) 32, 132 Bcbson V. Sherwood, 4 Beav. 184 (1841) 167 ■Hodges V. Croyden Canal Co., 3 Beav. 86 428, 429 Hodgson %'. Bibby, 32 Beav. 221 479 V. Hooper, 3 Ell. A Eil. 171 399 Hodle V. Healey, 1 Ves. A B. 540 (1813) 410 Hodson V. Sharpe, 10 East, 350 (1808) 661 lU Hodson V. Howes, 35 Ch. D. 668 (1887) 142 Ho >ffi^Bamie T^Htc! Ja: Iff '^'" '^HarvJH 'W^^y ^'• i^Kjeakes iMJetTi-ye g|.k'nniii .a.lcnkinj 'M'k'iikiii! ;^B JJf Jackson and Oaksluitt, 14 Ch. D. 851 (IHHO) 508 Smith V. Sebthorpe, 34 Ch. D. 732 (18S7| V.V) Jackson v. Vail, 7 Wend. 125 4.")2 /Je Jackson and Woodburn, 37 Ch. D. 47 (1887) 50S Jacquet V. Jacquet,27 Beav. 352 4ti0 James V. Dean, 11 Ves. 391 399 15 Ves. 248 (1808) 3115 TABLE OF CASES. Ixxi . . 24'.» 42(5, 458 . . 427 a.j'), 440 40 40 . . 421) 34 . . 241 o07 . . (i07 H7 22'.t . . 43.{ 123, 12 J 22(; 420, 422 3H1 . . 32t; •60-1 12 378 . . r)Ot; 134 .. 211 01), tiOl, fUl 4s 13.-) rm 131) 4.V.> ')0H 4riO 3'.t!l 3',<') r.MiK. lames V. Plant, 4 Ad. A- Ell. 701 482 V. Halter, 3 Bing, N. C. 532 (1837) 3H, 382, 426 Famieson v. Ilarker, 18 U. C. R. 5!»3 (18.>i») 385, 452 ?<; Jaue Uftvis, Kvans V. Moore (18i>l), 3 Ch. 11!) 443 JarviB V.Cook, 211 Gr. 300 (1««1) 300 Jarvis V. Lawrence, 22 Oil. D. 202 (1882; 7 lay V. Johnstone '.18!»3] , 1 Q. B. 18D 441,442 ijayne V. Hut;he9, 10 Exch, 4.'}0 (1854) 411» FJeakes V. White, Exch. 880 (1851) 333 fjt-rfryes v. Evans, l'.» C. B. N. S. 2r,7 (1805) 232 ^Jennings V. Hart. 1 K. it C. 15 (1875) 07 V. Ward, 2 Vern. 520 (170.')) 272 [Jcnking V. Jenkin^;, 11 A. R. 95 (1884) 1(',5, 170, 178, 1<)5 iJenkins V. Joneg, y Q. B. D. 131 (1882) 40 2 Giff. !»9 (1800) 272 V. Martin, 20 Gr. 013 (1873) hV.) lerrit v. Weare, 3 Price 575 225 IJesopp V. Watson, 1 My. & K. 005 (1833) 334, 340 Ijussui) V. G. T. R. Ry. Co., 28 Gr. 583, 7 A. R. 128 (1882) . . . . 378 jjodrfllv. Beale, W. N. (1889) 230 337 jjolland V. Htambridge, 3 Ves. 47H 587 iJohnson v. Church Wardens of St. Peter. Hereford, 4 A. it K. 520 244 V. Kraimer, 8 O. R. 1(13 (18S4) 408 V. McKenna, 10 U. C. R. .V.>4 (1.S53) 301 V. Oliver, 3 0. R. '-'O (1883) 414,4.55,404 ;;,• Jolinson and Tustin. 30 Ch. D. 42 (1885) 514 Sly v. Bhike, 29 Ch. I). '.»71 (188.J) 444 I Johnson V. Wild, 44 Ch.D. 140 (1890) 414 Mohiiston V. Clark, 2 B. C. L. R. .50, 81 (18^>1) 8-» V. Reid, 29Gr. 293, (18S1) 2,003 .Tones v. Cowden, 34 U. C. R. 345 (1874) 592, 591 V. Cleveland, 10 r.C. R. 9 (18.59) 418 v. Jones, 10 M. A- W. 71-J(1847) 41.i V. Richard, 5 A. A- E. 413 4S2 V. Roe, 3 T. R. 88 (1789) 39,41 v. Skinner, 5 L. J. Cli. 90 (1835) 10 V. Smith, 1 Hare, 55 590 V. Turberville, 2 Ves. Jun. 11 (1792) 4 13 V. Williams, 2 M. it W. 320 (1837) 3.J7 Jordan V. Young, 1878 W. N. 230 427 Joslin V.Jefferson, 14 C. P. '200 2U V. S. E. R. Co., D. M. it G. 270 (1854) 451 .lump V, Jump, L. R. 8 P. D. 159 (1882) 10 JuiMiison V. Pitchers, 13 Sim. 327 497 ''n Ixxii TABLE OF CASES. PAoe. Kaatz V. White, 19 U. C. C. P. 36 (1869) 32 Kay V. Oxley, L. R. 10 Q. B. 360 51 V. Wilson, 24 Gr. 212 592 Re Kearley and Clayton, 7 Ch. D. 615 (1877) 505 Kearsley v. Phillips, 11 Q. B. D. 621 (1883) 133 Keefe V. Kirby, 6 Ir. C. L, R. 691 423 Keefer V. McKay, 29 Gr. 162 (1881) 16'J Keele v. Ridout, 5 U. C. R. 240 (1848) 020 Keeling V. Morrice, 12 Mod. 371 245 Keen v. Codd, 14 P. R. 182 (1891) 301» Keene V. Deardon, 8 East. 248 468 Keffer v. Keffer. 27 U. C. C. P. 288 (1877) 401 Kelley v. Imperial Loan Co., 11 S. C. R. 516 (188.''>) . . , . 271, 275 Kemp V, Westbrook, 1 Ves. Sen. 278 (1749) 404 Kennedy v. Bateman, 27 Gr. 380 (1880) 412 V. Green, 3 My & K. 699 (1834) 26, 599 V. Lyell, 15 Q. B. D. 491 (1885) 40 Kent V. Kent, 20 O. R. 462 (1891) 461,404 Keringham v. McNelly, 12 Ir. Chan. R. 89 307 Kerr V. Hastings, 25 C. P. 429 252 V. Murray, 6 Gr. 343 (1857) 8 Ketchum v. Mighton, 14 U. C. R. 101 (1850) 378 Kettlewellv. Watson. 26 Ch. D. 501(1884) 600 Keyes V. O'Brien, 20 U. C. R. 12 (18(50) 22!» Keyse V. Foweli, 2 Ell. A: Bl. 132 357 Re Kidd and Gibson, [1893] 2 Ch. 695 506 Kidd V. O'Connor, 43 U. C. R. 193 (1878) 11 Kimball v. Connolly, 3 Keyes, 57 546 King V. England, 4 B. & S. Q. B. 785 (1864) 14 V. Ferrybridge, 1 B. AC. 383 (1823) 48 V. Hoare, 13 M. & W. .'.Oo (1844) 114 V. Manchester and Salford Waterworks Co., 1 B. A C. 630 (1823) 5 V. Wycombe Ry. Co., 28 Beav. 104 (1800) 4 Kingdon V. Nottle, 4 M. & S. 53 227 Re Kingsland, 8 P. R. 77 (1879) 275 Kinsman v. Rouse, 17 Ch. D. 104 (1881) 355, 436, 437, 4(15 Kircudbright v. Kircudbright, 8 Ves. 51 (1802) . . . , 343, 344, 340 Kitchen v. Murray, 16 U. C. C. P. 69 590 Klinck V. Ontario Industrial Loan, 16 O. R. 565 (1888) 135 Klock V. Chamberlin, 15 S. C. R. 325 (1888) 8 Knapp V. Cameron, 6 Gr. 503 278 I TABLE OF CASES. Ixxiii PAGE. ?< Knowles; 24 U. C. R. 311 (1865) 1 Hi, 194 -i!Kountze v. Omaha Hotel Co.. 107 U. S. 393 (1882) 394 t fKylev. Stocks, 31 U.C.R. 47 (1891) 37 "' -l»Kynnair(l V.Leslie, L.R. IC. P. 389(1 36<5) 331 C^ L. Lacey V. Hill, L. R. 19 E.i. 346 (1875) 7 i Laidlaw V. Jackea, 27 Gr. 101 415, 4o4 ;} Laiug V. Avery, 14 Gr. 33 (1867) 3')5 'P Laird V. Brings, 19 Ch. D. 32 (1881) 493 V. I'uton, 7 0. R. 141 (1884) 590 ^ ;:c Lake, 63 L. T. 416 440 ;^ Lalor V. Lalor, 9 P. R. 455 (1883) 167,169 Lamb v. Cleveland, 19 S. C. R. 7S 307 Lambier v. Lambier, 9 P. R. 422 (1883) 176 In ;v Lancashire Cotton Spinning Co., 35 Ch. D. 656 (1887) . . . . 134 i.V Lauder and Barley, (1892), 3 Ch. 41 505 1892, W. N. 119 508 Lane, 9P. R. 2.-.1 (1887) 182 Laplante V. Seamen, 8 A. R. 557 (1883) 163,168 Larkins V. Phipps, (1873). W. N. 207 444 Lasby V. Crewson, 21 O. R. (1891) 159 Latch V. Bright, 16 Gr. 653 (1869) 561 Laulor v. Henderson, Ir. Rep. 10 Eq. 150 (1876) 337 ;;<- Lavery and Kirk, 33 S. J. 127 508 LavLi-y V. Purttt'll. o9 Chy. D. 508 (18b'8j 7 Laurence v. Faux, 2 F. & F 435 36 v. Humphries, 11 Gr. 211 278 Law V. Bagwell, 4 Dr. & War. 408 (1843) 459 Lawton V. Ford, L. R. 2 Eq 97 (1860) 452 Lawlor v. Lawlor, 10 S. C. R. 194 (1881) 124 Lawrence v. Norreys, 15 App. Cas. 220 (1890) 473, 474, 475 Lawrie v. Rathbun, 38 U. C. R. 255 (1876) 560, 594 Leach v. Dennis, 24 U. C. R. 129 (1864) 13,44,455 V. Shaw, 8 Gr. 494 415.455 Lee V. Glutton, 33 L. T. 717 587 V. Howes, 30 U. C. R. 292 (1870) 124,583 v. Lorsch, 37 U. C. R. 262 (1875) '.'37,243 V. Morrow, 25 U. C. R. 604 (1866) 123 V. Smith, 9 Ex. 662 (U54) 33 Leech v. Leech, 24 U. C. R. 321 586 Lees V. Whitely, L. R. 2 Eq. 143 (1866) 109 *m Ui Ixxiv TABLE OF CASES. PAOE. Leigh V. Dickson, 15 Q. B. D. (iOtlBHl) 414 V. Jack, 5 Ex. D. 274 (1871)) 318 Leighton V. Medley, 1 O. R. 207 (1882) 218,252 Le Marke v. Davies, 11) Cli. D. 281 485 Lemesurier V. Willard, 3 U. C. R. 285 (184(i) 230 Lenahan v. McCabe, "J Jr. E(]. 342 5!)7 Lennore V. Westuey, 17 O. R. 472 (188'.») 34 ,53 Lethbridge V. Kirkman, 25 L. J. Q. B. 8i 424 Letts V. Uutchina, L. R. 13 Eq. 17 V . C C. 1'. 335 ^j (1875) (;32 Petroleum Co. v. Ilurd, L. R. 5 V. C. 240 (1874) . . . . 47'.i iJc Linet, 3 Chy. Ch. 230 (1871) 3SS Liney v. Rose, 17 U. C. C. P. 188 (1880) ;;'.»* Linsell v. Bonson, 2 Bing. N. C. 245 (1^35) 440 Linton V. Linton, 15 Q. B. 1). 230 5(;'.t V. Imperial Hotel, 10 A. R 3.)7 24',» Lister V. Pickford, 34 Beav. 570 (1804) CO, ."1 Livingston V. Wood, 27 Gr. 515 1H80) h Llewellyn V. Mackworth, Barn. C. R. 410 4.58 Lloyd V. Griflith, 3 Atk. 204 (1745) 221 V. Henderson, 25 U. C. C. P. 250 (1875) 378 V. Jones, C. B. '.»0 (184S) 5 V. Tench, 2 Ves. Sen. 215 (1750) 300 Locke V. Matthews, 13 C. B. N. S. 753 3'.)'.), 4C0 V. Southwood, 1 M. etc 411 (1 31) 328 Locking v. Parker, L. R. 8 Ch. 30 il872) 431, 4i;0 Lockyer v. Vade, Barnardistin Ch. 444 301 Loftus V. Swift, 2 Sch. A Lef. 042 (1800) 447 /.V Loney, 10 U. C. R. 305 (1853) 178 London v. Southwell, Hob. 304 50 Loan Co. v. Smyth, 32 U. C. C. P. 530 (1882) 152 L. N. & W. R. Co. V. Boulton, 02 L. T. 308 ( 188'.)) 5'.> Longmale V. Ledger, 2 Giff. 157(1800) 0' Lord V. Lord, L. R. 2 Ch. 782 (1807) 427 .. 47;t .. ;-)'.( i •i4i; , . .)(;;• 241) CO, .-1 . . 4r,s •221 . . 37.S 5 . . 300 3'JD, 4C0 . . 328 431, 4i;0 .. 301 447 .. 178 oO . . 152 .. !)i 427 TMUJ-: OF c.\s/-:s. Ixxv I'.UIK , Lo (l ht. Jolin V. Bouyliton, 9 Sim. 225 (1838) 44'.> J;. Lount, 11 U. C. C. P. 97 (18t51) f)72, ()2(i Low V. Morriscn, 14 Gr. l!)o (1808) 307, 370, 37.> Moor Co. V. fjtuiilev CorI Co., 34 li. T. IHi; 3J7 i^Lowc V. Fox. 15Q. B. D. 007 (188:-|) 473, 49» ^* V. Telford, 1 App. Ca. -iU 202 Lowry v. Crothers, I. R. 5 C. L. 'JS 4H4 ^Lowtiierv. Heaver, 41 Ch. D. 201 (188!)) 33 Lucus V. Demiison, 13 Sim. 584 (1843) 430 V. Hamilton Real Estate Ass., 20 Gr. 384 (18VJ) ',[0 Liuliamv. Ltullam, 03 L. T. 3.32 (181)1) 444 ,« Lmlwdl V. Newman, C T R. 4.'>8 (l7'.)o) 231 Liitwyckev. Lutwycke, Forrest 277 (1800) 343 Lyalfv. FUiker, 1873. W. N. 208 4.-)l Lyell V. Kenneily, 14 App. Cti8. 437 401 18 Q. B. D, 790 (1887) 323,421 Lyman V. Snarr. 10 U. C. C P. 402 (1801) 32 Lynch v. O'Hara, U. C. C. P. 2.V,I (18.")7) .",3 V. Provisional Gov. of Para>;nay, L. Pi. 2 P. A D. 208 (1871) 2H7 V. Wihon, 22 U. C. R. 220 (i;;4 *M Ly ni V. Reed, 13 M. A- W. .30) (18U) 30 He Lyons, O. S. 027 '>i'>7 n. Macauley V Boyle, 25 U. C. C. p. 239 -)78 I Mucibetli V. Macbetii, 20 U. C. R. 549 (I8()7) 121 Macdonald V. Buliivant, 10 A. R. 5h2 (18.S4) 118 V. Tlie Georj^ian P.ay Lumber Co., 2 A. U. 30 (1>77) .. 0, 13 V. Macdonald, 11 (J. R. 187 427, 41j Macdonell V. McGillis, 8 P. R 339 (IHSO) 174 Miicdoujiah V. Macdonell, 5 C. P. 3.55 'J28 V. Miicdou«all, 14 Gr. 207 (iMiW) l.sO Machur V. Foundling,' Hospital, 1 Ves. A- ]> 405 Markwick V. Hardin;4ham, 15 Cii. U. 3.{'.i ( HsO) .. .. 421, 430, 437 Maclennan V. Gray, 10 A. R. 224 (18S9) 275 V. Royal Ins. Co., 37 r.C. R. 2>^M1875) 2">3 lU' Macnabb, 1 O. R. 94 (1882) 500, 510, 511. 512 Macnamara v. McLay, 8 A. R. 319(1883). ..".47, 5t'.>, 550, 552, 553, 555, 559 /;-■ Mulden, 27Cli.r). 527 470 Magdalen Hospital v. Knotts, 4 App. Cas. 324 .. .. 393, 395, 470 College V. Atty.-Gen., H. L. C. 207 (1858) 351 Ma^ee V. Rankin, 29 U. C. R. 257 249 TS^ Ixxvi TABLE OF CVKSA'A PAOB Magratb v. Toad, 2G U, C. R. 87 (180(1) 5C2, RlA, 694 ':7:Mcntney Mahar v. Fraser, 17 U. C. C. P. 414 (181)7) 441, 44.5 ' , Menzies Major V. Ward, 5 Ha, 598 (1847) 138 . ■ jte Merc Makin V, Watkinson, L. K. 6 Ex. 29 249 j; Mercliaii Malachy v. Soper. .H BinR. N. C. 371 609 Merchun 7/1 re Mallaudine. 10 C. L. T. 22fi 313 | Meroditl Mallmine V. Hart, 4 U. C. R. 525 241 f Merritt Mallock V. Pinhey, 9 Gr. 550 (1862) 8 M lie Metrt Malone v. Malone 17 O. R. 103 (1889) 290 'M IMetropo Manby V. Bewicke, 3 K. & J. 342 47.'> ,.1| Meyers Manderville V. Nicholl, 10 U. C. R. 609 (1859) 591 M ife Mich Manning V. Dever, 35 U. C. H. 294 252 ,JB Milford V. Wardle, 5 A. & E. 758 (1836) 482, 480 'MB Miller v. lie Manseli, en p. Morton (1892) W. N. 32 354 Wm v. Mantz V. Goring, 4 Bing. N. C. 451 240 WM v. J?e Mara, 10 O. R. 391 (1888) 571t Mare v. Lewis, I. R. 4 Eq. 219 473 Marker V. Marker, 9 Ha, 10 79,477 Marquis of Clauricarde V. Henning, 30 Beav. 175 (1801) .. 477,479 i?e Marsh and Granville, 24 Ch. D. 11 502,508 Marshall v. Cave, 3 L. J. Ch. O. S. 57 82 iit'Marslitiekl, 34 Cli. D. 721 (1887) 427,429 Marson V, Cox, 14 Ch. D. no (1879) 104 Martin v. London C. & D, Ky., L. R. 1 Chy. 501 (1800) 7 V. Ma«ee, 18 A. R. 388 (1891) 281, 290, 313, 314 v. Smith. L. R. 9 Eq. .50 (1874) 31 V. Weld, 19 U. C. R. 031 (1800j 308 .-^ Martyn V. Clue, 18 Q. B. 074 (1852) 240 Mason V. Chamberlain, 1 Thom. 2nd ed. 7 (18S4) 07 V. Johnston, 20 A. R. 412 (1893) 442 Maturis v. Westwood, Cro Eliz. 599, 017 245 Mason v. Mason, 13 O. R. 725 (1887) 309 V. Shewsbury & Hereford Ry. Co. L. R. Q. B. 578 (1871) 480 Matson V. Dennis, 10 Jur. N. S. 461 127 V. Swift, 5 Jur. 045 (1841) .. ., 146 /? Municipality of York v. Mayor of Fredericton. 29 N. B. R. C()2 (1884) .".HO Mniisie v. Lindsay, 1 O. R. 164, 10 P. 173, 432 81, xi 11 O. R. 520. (188(1) 20,79.81 Munton v. Lord Truro, 17 Q. B. D. 783 i>20 Murcar V. Bolton, 5 O. K, 1(14 (1881) 158,105.203 Mnrchison v. Murchison, 17 O. R. 254 (1889) iCS Mnrphy V. Mason, 22 Gr. 405 (1875) IHl V. Murphy, 11 Ir. C. L. R. 205 413 lie Murray and HaR«arty, 15 L. R, Ir. 510 (1884) 507 Canal, O. R. 683 (1884) 4(11 Murray v. Watkins, 62 L. T. 796 ( 1890) 4'.H lie Massie Hall Block, 8 O. R. 225 (1884) 123, 57-* Muskoka Mill and Lumber Co. v. McDermott, Ct. of Appeal, April, 1894 3')2 ,g Mutlow V. Bigg, 18 Eq. 246, 1 Ch. D. 385 442,459 Muttlebury V. King, 44 U. C. R. 3.55 ''13 TABLE t'F f.isrs. 1 X X i X SI l>Al.E . . . . '>w l-.'O .. .. r,n ir,l . . . . a:.!t .. 17n . . . . loi; ,, .. 41.; . . . . 4'2u , .. 11) . . . . m . .. if.i f.lO, (.'27, <;33 . . . 177 . . . . li'l . . . 5 12 (ilC, ('.17 . . . . 505 . . 87. M 13 1, ;iii7 . . 4-25. 4',t7 4s,-. . . . . -Ml .. 1.V2, .')»;:] 3S7 . . . . 135 s ; (1884) ■)3i'> 81, H'2 . '20, 79. 81 . . . . '')'2'i l.-)S, Ifi.i. -203 . . . . 168 181 .. .. 413 o07 4t!l . . . . 4'.IS 123, ",i , April, . . 31)2 442, 459 (113 I'AOK. jHutiml Lift' Ins. Co. v. Dake. H7 N. Y. 257 544 ^> Kel V. Duyle, 45 U. C. U. «5 (1880) 3.V2, 4Hl Mo. :M.Anamv. Tick..!!, '2.TIT. C. H. 4!t!»(18«4) 245 Mr.Vittiiir V. .Misuii, 40U. C. R. .'.7(1 24<,» V. McArtlnir, 14 U. C. R. 544 (18.'.7) 3t>4 M, ( '.,U.. V. Mf('!il«-, 22 I', f. R. 378 (18(>3) H ..MiCitllimi V. .Si.yd.r, litC. r. m 241 McCiiiiii V. DfiiipMfy, (Hlr. 1!»2 H McCitnili.T V. Cc.iimi. 5 \Vatt»& .S. (ra.)2l .')3!> MiCiiiTnll .-. Watkiiis, I'.l I'. C. R. ^ISdMMt) 245 Kuriirtliy V. Arl.uckl.-, 31 I'. C. C. P. 405 (1S81) 82 iMrr-.i^kill V. McCa.-f City oiiill V. McManter, 15 N. S. R. (3 R. & ( J. ) 372 571 McDonnt'll V. McKinty, 10 Ir. L. R. .514 351,308 McKwcn V. Roulton, 2 Chy. D. 300 (18(i0) 59 McFarhmd v. McClees, 17 W. N. C. 547 545 MclJregor v. Ktnller, O. R. 081 (1883) 303, 309 V. Mc(4regor, 20 Gr. 451 302 27 CJr. 470, 5 O. R. 017 (1S84) 84 Re Mcdugan v. McGiigan, 21 O. R. 204 (1801) 31 McOinncss V. Kennedy, 20 U. C. R. 93(1809) 32 McUroy v. Hawke, 5 Gr. 510 (1856) 8 McTntosli V. Rogers, 12 P. R. 380 504 Mclntyre v. The Canada Company, 18 Gr. 367 (1871) 418 I' '•■ ■:'M ■m Ixxx TABLE OF CASES. PAOI.I McKay V. Bruce, 20 O. R. 700 (IftOl) 352, 481, 483, 494, r>i)3 ' McKay v. Howard, ti O. R. 13J (1H83) 2ri9, 2;:. V. KfM.fjT, 12 P. R. 2o«i (1887) lit:' V. McKay, M C. P. 1, (l.SHO) .' . . . . 2»i £ 8 1'. R. ;m(1880) 20> ■** McKt>nny v. Arner, 8 l^ C. C. P. 4(5 3m; V. S|Hmcp, Man. Rep. Ti'in/). Wood, 11 7> (^ McKenzie V. .1i:tna Ins. Co. Runs. E(i. iK-c. 34<> (1S79) Ill V. Hamilton. H. E. C. 1 (1871) :•:. --^ McKinnon V. Burrows, 8 O. S. 500(1833) 228, 2;io V. McDonald, 13 Gr. 158(1807) 301, 3tU McLaren v. Frawr, 17 <»r. .507 (1«70) 7ti, 00:; V. Kerr, 30 I''. C. R. 507 (187(5) 2:^1 V. Morphy, 10 If. C. R. OlW (ISOo) :!'> /^ MoLay, 24 U. C. R. .54 (1804) 5.> McLean v. Burton, 24 Gr. 134 (1870) :,»> V. Laidlaw, 2 U. C. R. 222 (1845) 2H1 McLeisli V. H'uvaril, .*< A|.p. .'><« r,4i: McLellan v. Rogers, 12 L'. C. R. 571 2:)1 McLennan V. McDonald, 18 (,r. r02(l.S71) 5H: V. McLean, 27 Gr. 54 (1870) l:>:i McLeod V. Darch, 7 U. C. C. P. :i5 (1H57) 31 V. Truiix. 5 (). S. 455 5!ll McMahon v. Burclu'll, 2 I'liil. 127 (1840) 4U V. Spencer. 13 A. R. 430 14-J McManus V. Cooke, 35 Ch. D. 0S1(18H7) : McMaster V. Morrison, 14 Gr. 142 (1S07) .373, 388, 3j8(1855) 001,003 McMicken v. Ontario Bank, 20 S. C. R. 54.S (1S02) !• y^• McMillan, 24 O. R. IHI (1H!>3) ;!:'] 8 P. R. 540(1881) 17.- McMillan V. Miller. 7 T^ C. R. 544 5.f *^^ McMurray v. .Spiwr, 5 Eq. .527 i>13 y^' MeXahb, 1 O. K. 04 (1^82) M MoXaniara V. Kirkland, iX A. R. 271 t>Or V. McLay, .s A. R. 310 (1883) 020, t;;i:' McNauphton V. WiKf;. 35 r. C R. Ill (1874) 24.i McNeil V. Train, 5 U. C. R. 01 (184K) .): McNish V. Munroe, 25 U. C. C. P. 200 (1,S75) 50, 3!»: Mctiueen v. Mct^ueen, 10 I'. C. R. 103 (1H53) 411. V. Thei-^ieen, lOS. C. R. 00(l> CXI PA II I 489, 4!)4, 51)3 2.-)!), 27.- . . . . l'.»2 . . . 230 . . . . 20^ . . . ;j>« . . . . 1> .. .. Ill . . . :>'.' . . 228, 2»i 3t)l, 3114 7t), <)0:i . . . . ;i'.t< . . . ">a'.' . . . . 2t;i . .. M' . . . . 2.J1 . . . ns: .. .. l:':i . .. »: . . . . ."'.11 4H . . . Ui 373, 38S, 3.S1I GOl, 003 H . . 17." . . til3 . . »)0: (i2'.t, ti;!:' . . 24.1 :C 50, 3!t; 41!. . . ;w? 1 (jo: rii I'.tx '^ 585. 5 12, fiO'.l, 447, Mf Nivylor ancl SiH'ndLi, 34 Cli. D. 220 {im)) »,.,,! V. Sc.tt, 10 r. C. R. 3(il N.'.-.n V. Ivistwoul. 4 r. C. K. 271 in . N.l«m, 2C'liy. Cli. H. 2:j2 K.l-.'ii V. Pago, L. 11. 7 E(i. 25 (18C.8) |I,.v,. V. r.'iiii.ll, 33 L. .1. Oil. 23 (l.s(J3), !) L. T. N. .S. 2s5 . . . 'j,-\ ill V. .Sn.llinjr, L. H. 15 Cli. 1). Cm'.* I18.S0) J..vitt V. McMuiray, 14 A. R. 12<; (l.SSti) fcwliouM V. Sinitli, 33 Ch. I). 127 (l8Hti); U \\,\,. f'lis. 423 Nfwuiarcli, Nfwiiiiircli V. Storr, ilCli. I). 12 (1H7,S) j^cwtoii V. Ay.scougli, lit V't'j4. 531» ;,.wton V. Hluiit, 3C. H. 081 (1S4(1) ,,• /wW. NiclinlH, 22 Cli. I). 782 (1S82) tich.ils to Nix.-y, 2!tCli. I). 1(MI5(1.S.S5) .Khnlsoi; V. I'uK'f, 27 l'. (.'. R. 31s »io..l V. Al].'nl)y, 17(). R. 275(18S!>) Ni\(in, 13 1'. R.314(18V.t) »i\(.ii V. Hiiiiiiltim, 2 Dr. & Will. 3ti4 V. Miiltby, 7 A. R. 371(1882) iiciiviMs.s V. WidgiTV, 2 Miiss. ."(Oli ill-is V. Lf NfVf, 3 Atk. 81 (1744) ^^.rthof .Scothiiid Mortfirage Co. v. (Jcrinan, 31 T. ('. C. V. 3J5 (18.80) V. ni.^ll, 4<1 I'. C. R. 511 (I.^.S2) .. .. irtlify V. Northey, 2 Atk. 77 (1710) V. Str.anpf, 1 P. Wins. 341 (1710) ^'i.rton V. The London & Nortli W.stern R. W. Co., 13 Cli. I). 2r.8 (I8;!l) ;i57, Sow.Tv V. C.nnolly, 20 U. C. R. 30 uill V. N,.-w Korfit, 18 C. H. 70 (1.^50) 50!) 241 580 554 308 505 'J3 010 448 308 477 114 1(1 .".00 024 17(5 202 .500 37 587 6 118 lis 122 335 470 247 485 t'f'Mniiorv. Dunn, 37 U. C. R. 430(1875) 75 [> M.ll V, Wakf, 3 Cainj). 304 243 )'|)'>iiMhii.' V. Whitty. 2(). K. 424 (l.'<82) i:W, 274, 275 ()linnfrlicit\ V. lM-..tw»-ll, 11 I'. C. R. 05(lS.-)3) 37 '■ /.'(WfOtticiid U.'CfivtT, 18 (^. R. D. 222 D'linidy V. .MfCanray, 2(). |{. 300 (1,S,S2) 84 C»li\.r V. Riciiardson, Vex. 222 (1803) 425 li'I,,,nf V. O'Loiif, 2 Cr. (i42 100 I) Nar.. V. .M<;Corniaik, .30 r. C. R. 507 2.50 f>N.il V. Can-y, 8C. 1», .H30(l.><50) (•ill. y V. (ianlincr, 4 M. iV W. 5(M» 403 Hiiinw V. Corric, 2 Mudd. 3;{0 243 •iitiiii.i Iiidustriul Loan Co. v. Liiid.xav, 3 (). 1!. 75 (l.'-Ki) . . . . • . . 531, .543 .''M U. Ixxxii TABLE OF CASES. PAOB. Re Orange aivJ Wright, 52 L. T. GOG (1884) 5.au\viKKi, Hi M. & W. 547 378 iJf IV;khani and M..SH, 1 Ch. 1). 214 (1875) 507 iJr rag*-,. Jones V. Morgan [18!>2]. 1 Ch. 304 472 Pagf-tv. Foley, 2 Hint,'. N. S. ti88(is;<(i) 420 Paine V. Jones, L. H. 18 >:([. 320(1874) 4<)(J Palk V. Shinner, 18 A.l. & Ell. 574 (1852) 4113 Palmer V. Elliott, 3 M07 Parker V. Clark. 1 .lur. N. 8. G0.5, 3 !Sim. &(}. IGl (18.55) 328 V. MoDonal.l, 11 C. P. 478(18(12) 228 V. Taswell, 2 DeG. & .T. 5.58 (18.58) 31 PurkinHon V. Hanbury, 1 Dr. & Sni. 143 (18G0) ir7 Patrick V. Hinipson, 24 (^ B. 1). 128(1889) W) Patridg.' V. Bere, 3 B. & Aid. (i04 (1882) 403 ratt.'n to Edmonton, 48 L. T. 870 (1882) 'M V. Guardians ..f E.lmonton, 31 W. R. 785 (1883) 177 PatterHon v. Mills, 19 L. .1. Ch. 310 r^!7 V. Tanner, 22 (). R. 3GG (1892) •.^74 PattiKon V. Hawk.'swortli, 10 Beav. 375 I"!' Paid V. .fohnmm, 12(;r. 482 8.S V. NurHe, 2 M. & R. .525 213 Paynter v.Carew, 18 .fur. 417(18.54) H") TAIiLK (>/' CASKS. Ixxxiii '1 1 PAoa. r.iicey V. Ovai, 26 C. P. 4(i4 04I J'.iicock V. lVac(K;k, Iti V'es. '^1 40I IVivrs V. Lang, L. R. 12 Kq. 41 (1H71) 447 rciirse V. MorriH, L. R. 5 Cli. 231 KX; IViirsonv. Miilhollaml, 170. R. .-)14 (1889) Sitj) AV I'wits Trusts, L. R. 7 Ec|.3()2a«<'!') 354 I'eok V. Buck*-, 2 Chy. Ch. 2l>4 ^2 V. Corporation of (tiilt, 4()U. C. R. 211 (IHSl) (;18 IV(id.T V. Hunt, 18Q. B. 1). r)70(LS87) 408 IVk^'v. 11.. hsnn, 14 O. R. 272(1887) 118 I'fiTK'c V. Metcalfe, .'iGr. t>28(lK,-)(i) .583 IMl.'y V. HiiHCoinbe, it.Tur. N. S. 1120 4!».j I', uiiy V. Allfin, 7 I). M. & (J. 407 457 rciinsylvania V. Harnier, 1 Local Courts (Jazftte 108 544 IVnlinpton V. Brownleo, 2S U. C. R. 18!l (1808) 41t» IVntland v. 7 Thilps V. Hornsteflt, L. R. 8 Kx. 26 (1872) 12 I'iiiiii'y V. Phin.'v. 2 Vern. 638(1708) 346 i'ickrring V. Stiinifon), 2 Vcs. .Inn. 582 (17'.I5) 4».i, 477 riirce V. Canada Permanent L. & H. Co., 24 O. R. 426 605, (;o7 Ri I'iggott and (J. \V. R. Co., 18 Ch. D. 146 (1881) .508, 51 i I'iwott V. Jefferson. 12 Sim. 26(1841) 443,444 I'iiuhin V. L. & B. Ry. Co., 5 U. M.& (i. 861(1854) 6 I'iiicombe V. Thomas, Cro. .lae. 524 48 I'iiihorn V. Honster, 8 Exeli. 7<>3 401 I'lttv. Lord Daere, 3 Ch. D. 205(1876) 3.54 riatt V. Attrill, 10 S. C. R. 425 226 V. (;. T. R., 12 (). R. ll!»(188(i) 22ti. 227, 23:', .504 riiisterers' Co. v. Pari.>il) Clerks' Co., 6 Ex. 630 489 I'liiyfair v. CiK)per, 17 Beav. 187 (18.53) 443, 453 i'lomley V. Shepherd, L. R. 1891 A. C. 244 281,304 riiiii.l) V. SteinhofT, 2 O. R. (il4 (1882), 11 A. R. 788, 14 S. C. R. 739 . . 88 I'hinimer V. Wellington, 9 App. Ca. 699 79 I'oinfret V. Ricroft, 1 Saund. 322 232 A'' Ponton and Swanston, 16 (). R. 669 (1889) 503 i'uok' V, Griffith, 5 Ir. C. L. R. 277 367 n :j-1 \ \. Ixxxiv TAIiLE OF CASES. Paoi. Po\m V. Whitcombe, 3 Riws. 124 (1826) 40 /{>' Popple and lJurratt, 25 W. R. 248 (187(!) 605, 60i> /^• Portal and Lamb, 30 Ch. D. 54 (1885) 3 7fc Portlock V. (Jardner, 11 L. J. Ch. 313 478 Portlock V. Stacy, 9 Q. B. 1033 (1847) 35 Pott V. Curtis, Younge R. 555 81 Ee PowerH, 30 Ch. I). 2ttl (18H5) 441 Praed v. Hall, 1 S. & S. .Wl 278 Pratt V. BniiiM'll, 21 O. R. 1 257 V. Pratt, Fitzg. 284, Stra. !»35( 171 it) 34(> President of St. Mary Maf?dalen v. The Atty.-Gen., 18 ]3tav. 224, G H. L. 189 470 PresNcy v. Trotter, 2(i (Jr. Ifil (1878) l.V) Price V. Bevington, 3 Mac. & (i. 48t> (1857) 475 V. Bratly, KKJr. 37(>(18(;!)) % V. Strange, Madd. Itil (1820) 2118 Pringle V. Allan, 18 U. C. R. 575 (l,S5!>) 377,37!l Prior V. Horniblow, 2 Y. & Coll. 200 UA Proctor V. Bennis, 3(5 Ch. D. 140 7'.t V. Gamble, 1« U. C. R. 110 (1858) 'I'M Pronguey v. Giirney, 37 U. C. R. 347 (1875) ;<7 Proud V. Proud, 32 lieav. 234 4.V.I 11 W. R. 101 444 Provincial Ins. Co. V. Reesor, 21 Gr. 2?K) (1874) 2()M I'ryor v. Pryor, W. N. (1872) 133 172 Puchard v. TonipkinH, 31 W. R. 28(i 5S7 Pugh V. Heath, 7 App. C'as. 235 355 Prince V. McLean, 17 U. C. R. 4r»:< 573 /;.(•;(((»•/»' Punnett. IC.Ch. I). 220(1880) 134 Purser V. Bradburn, 25 C. P. 108(1875) 25.'{ V. Worthing, 18 Q. B. I). 818 (188(i) 17 Pyall V. McKee, 3 O. R. 151 (1883) 4f)5 Pyot V. Pyot, 1 Ves. Sen. 337 (1740) 3;W Queen v. Registrar of Middlesex, 7 Q. B. 150 (1845) 531 V. Sinnott, 27 U. C. R. 53!> (1808) 3M V. Smith. 7 P. R. 42t) (1878) 177 ^cQuimby, 5 0. R. 738(1884) 3i)'.' Race V. Ward, 4 K. & B. 702 •«'"'> Ratferty V. Kim?, 1 Keene, 001 (183(5) 43;i TABLE OF CASFS. Ixx XV PAOB. Rftiiw V. r.iixton, 14 Ch. 1). jW (18S0) 3r>7, 377, 378, 475 Kftkestraw v. IJnnvtT, ««•!. Cast-N in Ch. 55 437 H.iiii.-flinr V. K(H)nj. L. H. 4 App. Cas. I'.M {IH7H) 4SC KainsHV V. lilair, L. K. 1 App. Ciw. 7<»3 {\H7i\) 49 " V. .Stafford, 28 V. C C. P. 22, 401, 409 Kanfffhy v. Midland Uy. Co., L. R. 3 Cl>. 310 482 /Miankinpr'H Trusts, L. R. fi Eq. Ml 302 Hapson V. llerst'f, l(i fir. (W5 (18()») 8 Kasldcy V. Masters, 1 Ves. 201 (1700) 8 Katekin V. State, 20 Ohio St. 420(1875) 47 ft< Kathlxme and White, 22 O. R. .V* (1892) r>(Hi Kathtnin V. CuUxTtson, 22(Jr. 4()5 (1875) .V,(2. (HO Kav.nscroftv. Vrisl.y, 1 Coll. C. C. 10(1844) 444 Hawlins V. Rawlins, 2 C->n. 425(1790) :{35 Hawlinson V. Miller. 1 Ch. 1). 52 (1875) 333 Hawston V. Taylor, 11 Ex. 3(1855) 480 |{aynnind v. Richai-ds, Russ. Eq. Dw. 423 530 Read V. Morixth, Cro. Eliz. 321 328 V. Miniicipality of Kent, 13 U. C. R. 572 (18."i«) 555 l^adinpr V. Royston, 2 Salk. 423 381 A'. Re^5r.) 229 R.eve V, Thc.nipKon, 14 O. R. 4'.t9(1887) 242 l{eeves V. l?Uti-lier, [1>91] 2. (i. H. ;.0!t 441 H.id v. Whitehead, KMJr. 4J0(lHt!l) 502, 504, .">!tO KiKina (jr rd. Adanison v. IJoyd, il I'. R. 204 (18(W) 37 V. Hayley, 1 F)r. & War. 213 470 V. IJenjaniin, 4 l^. C. C. P. 179 540, .'i73 V. lUiss, 7 All. & Ell. 550 (18;F8) 485 V. Ronlton, 15 U. C. R. 292 OUJ V. (!uinnesH.3 1r. Ch. R. 211 470 V. Lahadie, 32 l". C. R. 429(1872) 40 V. Middlesex, 1 El. & El. 322 502 15 (l IJ. 970 . . . . 532 V. McCunnick, 18 FT. C. R. \'X\ (18.59) ,384, :W0 V. NorthunilMilnnd and Durham, 10 V. C. C. P. .520 (1801) . . 530 V. OMeara. 15 i:. C. R. 201 (1857) .500 V. ItuhndKo, 25 U. C. R. 299 010 V. Shrewshury Oas. Co. 3 B. & Ad. 210(183.') ft V. Smith, 43 l'. C. 1{. 3 (lH(i2) r>r,-2 of County of York, 3 I'. C. 15. 188 (l.s^r) tM Registrar of London v. Rt-^istrarof MiddU-scx, 17 U. C. R. 382 (!«.''.!») . . m: Rennt-r v. Tolley, W. X. {WXi) W 27 Rftte V. l$(K.tli, 10 (). K. X>7 (18H:.), 1 J A. R. 41'.» (1S87) 41il Rewv. I'ettet, 1 Ad. & K. 1%, lilU 4.50 Rt-ynolcU V. City of Toronto, l.-| C. P. 27t; (ISO.-.) 2r.3 RicH- V. Rice, 2i)n-\v. 7;MI''^-"':i) l-'D Rich V. .lolmson, Str. 1142 3;" /.'<■ Ri'.liunls, L. K. S Kq. ll'.» (lHC.it) 427 RicliariU V. CliainLerlaiii. 2ri (ir. 402 t)07 V. Fry, 7 Ad. it KI. 70C. (1>3>) 4J<.3, 4SN V. Hidiiu-ds, .lolins. 7."l (iMiO) :V.'7 /{•■ Ricliiirvihon, L. R. 12 Kii. 3!tS, 1;{ Kq. 142 0^71) 142 Richardson V. Younge, L. R. 10 E( 1870) 4;i(; V. Yonge, L. K. Ch. 478 (1871) 4;w Rickards v. Brcreton, 5 Ir. .Fur. 3:W r Ri.lout, 2 U. C. C. r. 477:(18r.3) f.7S Ridt.ut V. Harris, 17r. C. C. P. 8S(18(iC,, U /^' Kiley to.Streatfield, 34 Ch. D. 38C, (iKMi) .-.ll Riinington v. Cannon. 12 C. M. 18 (18."i3) 40(1, 4.">il Ringer to Tlioniiison,L4r. L. T. .'.HO, (1H>-1) M^ Roach V. Lundy, litCr. 243(1872) S Roaf V. (iiinhn, 23 C. P. Mt 2."2 Roan V. KronsLein 12 O. K. 203(1 VSC.) 4("2 /f P. R. 288 (1882) .50.->, .-(i7 Roliertson V. Daley. 11 (». K. 3r.2(l.sMi) 3C.3, 371 V. iScoliie, lo tir. .V)7 (lS(i4) > Robinet V. Pickernu', 44 U. C. H. :«7 (1X70) wi A'.r/«iW.' Re ,1 .!♦»>, ,n, Hull. &. I.. s. 2«kV. 178, ISd /^ Koliinson. 27 Cli. I>. lf.O(ls.vv 10 V. Rvei-N '.Mir. .•,"2ll8i;2) ., 121 RubHi.n V. CariMiit«T. 11 (Jr. ?« (IHti.".) Col V. Roi.s,,n. !•• 1'. K. 321(1 "^M) 172,201 V. Wiiddell 24 r. 0. R. ."•74 .•.04, 578, r>'M Rt.by V. Miiisey. s H. ,t C. 7ti7 (1828) m Rcwh V. Cftllen. C. Ma. .•.3t; (1818) 2C.I K(Kll.iirn V. Swinney. IC. S. C. K. 2'.»7 (1^88) 274 R(Klilani V. Morley, 1 DeU. it .1. 1 ,lsr.7) 442,447 R.Klger V. Harrison, 1803, 4 K. 171 MO Ro«in, 22 U. C. C. I'. ISO (1S72) 397 ]{»>.• V. II ifkfy,(-'a.Hs. l)i(,'. 292 9 3 A. H. 301)(1S78) .. .. 8 V. I'.-t.M-kiii, 13S. C. K. r.77(tS-i5) 59(!, 598 V. .McLav, 2(1 V. C. C. V. liK) (1870) 029, ti32 AVKdMH, L. K. 13K2) 241 V. McLiiy, 40 U. C. R. 83 54(), 559 Rossin V. Walkt-r, (J (Jr. r.l9 (il5 Rows.ll V. .M(.rriH, L. R. 17 Eq. 20 178 R.mn.l V. 15(11, 30 H.-av. 121 427 Rimli jtlmiii V. Wilsdii, 8 H. L. C. 3«i0 49 /if Rowe, Gl L. T. 581 (1889) 443 K-.Wf V. Stn-i't, 8 C. P. 217 (1859) 22!» Kudd V. Frank, 17 O. R. 758 (18,S9) 8 V. Harper, Hi O. R. 422 (1888) ;«)! Kussill V. Ca^iiell, Ir. Rep. (18()7) 597 V. Craliam.fi IT. C. R. 497 (1850) 37 V. Harf.ird, L. R. 2 Kq. .507 487 V. RuNM'll, 28 (;r. 422(1881) .. .. .. 532,(504 HuHtoinjee v. the (.^lueii, 1 C^. P. D. 48 383 Ryan V. Ryan, 5 S. C. R. 3>s7 (1881) .. ,, ., .. 4«4, 4tie, 4(17 V. Caiiibif, 2 Ir. Kq. R. 334 . . 444 Hyikumn V. The Canada Life Ass. Ci>., 17 Or. .'n'iO (1870) 152 Rykert V. Miller. 14 (Jr. 25(18(17) .591 Kyerfte V. Lyons, 22 U. C. R. 12 241 w S.vlt V. Manpiess of Northanq.toii, L. IJ. 1892, A. C. 1 272 Salter V. tJavanagli, 1 1). & VVal. (MIS 4(10 SiiiiipHon V. MuArthur, 8(;r. 72(l8t;o) 8 I!- Samlhaoh and Kdinondsun (1891), 1 Cli. 102 505, .508 Sauderx v. MalsburK, 1 O. R. 178 152 V. Sanders, 19 Ch. D. 373 (1881) . . . , 172, 3SH(, 414, 417, 420, 421 sIM Ixxxviii TABLE OF CASKS. PAOK. Sanderson v, B«r\vick-upon-Twet'd, 13 C^. B. D. 547 (18.S3) 4!», 231 Sands to Thompson, 22 Ch. D. 641 (1883) 404, 421, 45!), 4(10 Saugeen V. Church Society, () (Jr. 538 (ilii Saunders v. Kent, W. N. (1885) 147 27 V. Roe, 17 C. P. 344 (18(>7) 241 Savings Bank v. Ward, 100 U. S. 105 MS Jte Sawyer and Baring, 51 L. T. 35«) 50S Sayles V. Brown, 28 Gr. 10 (1880) 579 Scarlett V, Canada Co. 1 Chy. Ch. itO (1800) 224 Schofield V. Solomon, 54 L. J. Ch. 1101 508 Soholesv. Chadwick, 2 Moo. &R. 507(1813) 484 V. Hargreaves, 5 T. R. 40 (1702) Scott V. Dunbar, 1 Moll. 487 80 V. Fralick, 6U.C. R. 511(ia50) 22!i V. Jones, 4 CI. & Fin. 382 44.S V. McLeod, 14 U. C. R. 574 5Hr. V. Nixon, 3 Dr. & War. 388, 404 (1843) 418,424 V. Scott, 4 H. L. C. imrt (18(i4) " 470 V. Supple, 23 O. R. 303 (1803) 280,314 Scragg V. City of London, 28 V. C. R 457 (180!)) 24.) Scrivev. Myers, yC. P. 2.55(1800) 22!) Seager v. Aston, 26 L. J. Cii. 302 44ii Seale v. Johnston, 13 A. R. 340 (1^80) 3iiti Seaman v. Vawdrey, 10 Ves. 300 ,V>' Sear V. Lawson, 15 Ch. D. 420(1870) 11 Searby v. Tottenham, L. R. 5 Kcj. 40!) (1808) Xu Seddon V. Bank of Boltcn, 10 Ch. 1). 402 (1882) 4M) V. Senate, 13 East 74 (1810) 42 V. Smith, 30 L. T. KW . . :C.: Severn v, McLellan, 10 Gr. 220 (1872) ."iio Shanahan v. Sherrin, 10 IT. C. R. 000 (1853) 2;{0 -ReShaver, 3Chy. Ch. 381 (1871) 400, 400, 41!), 45,' and Hart, SI U. C. R. OO.i (1871) 101, It;.-) Shaw V, Gould, L. R. 3 H. L. .V)( 1850) ;W1 V. Johnson, 1 Dr. & Sm. 412 42: V. Keighron, I. R. 3 Eq. 574 3!i3 V. Shaw, 8 U. v. C. P. 273 (185!)) 405, 412 SheMon v. Sheldon, 22 U. C. R. 021 252 Shepherd v. Duke, !) Sim. 507 (1330) U3 V. Field, 70 111. 4.W 5t:. V. Tilley, 2 Atk. 352 tW2 Sheppard V. H »2tJ. 427 Ska." V. Cliai>umn,21(}r.r.:M (1874) 75 .Sla.l.i V. Harlow, L. R. 7 K (188(1) 3(18 Smitliv. HtiiIo, lOU. C. C. P. 24;MIHi50) 583 V. Hrowii, 14 U. C. R. 12 5!»2 20 O. R. ltifJ(l8',m) 1.-.0 V. Hurnham, L. R 1 Ki. l>. 41!t 480 V. Compton, 3 H. & A.I. 407(1832) 227 V. Doaii, 15U. C. R. 03ii(18:)8) 13 V. KUiott, 25 Ur. 5»S (lh78) 124 V. (;iWson. 25 IT. C. C. 1'. 252 (IS75) 75 V. (Jreen.l Col. 503(1^1) lOl V. Hill, ttCh. I). 143(187S) 4 JO, 427, 428 V. Holmes, .54 Mich. 101 530 V. Keown, 40 U. C. R. 103(1881) 3<.W V. Kiiitf, 10 Kast. 2-^3 40S V. LU.yd, Kx. .502 :''57, 303, .377, 378 V. Martin, 2 Wms. HmiwI 400 3 \. Midland R. W. Co., 4 O. R. 4!»S (18S4) 307 V. Kedford, r.MJr. 274(l-<72) 541 V. Ridout, 5 11. C. R. 017(18»!l) .500,572 V. Robinson, L. R. 13 Ch. I). 14M1W») 07 /« /v. Smith and Shenston, 31 r. C. R. 308(1871) 578 .Smith V. Smith, 5 Ves. 721 (1801) 345 V. Spears, 22 (). R. 280 (1802) -'74 V. Stocks, 17 W. R. 1135 3.->7 lt>^ Smith an.l '^•t>tt, 48 L. T. 512 (1S82) 510 Smithett V. Heskith, 44 Ch. D. 102 (1800) .. 105 .Smyth V. Leavens, 3 U. C. R. 411 (1847) :W4 Suarr v. Haldwin, 11 C. P. 353 (l?'li2) -'53 Himlerv. Snider, 13 0. P. 157(1803) 227,228 Soar V. Ashwell [1.803] 4 R. 002 4.VJ, 473 .Societe Cenerale de Paris v. Walker, 11 App. Cas. 30 (1885) 11 S.hI.11 v. Stevens, 1 Gr. 340 5;M) y^ Solomon & Meaffher's Contract, 40 Ch. I). 50S (I88i)) . . 130, 142 Soiilev. Union Bank, 45 Barb. (N.Y.) Ill lJ08 South .Sea Co. V. Wyiuondsell, 3 P. W. 143(1732) '^'>* ! '\l Ji' '•« 1*' » xc TABLE OF CASES. PAOC. Sov^•^^'i^'n v. Sovt-rcign, 15 (»r. 5*54 210 Sowilen V. Moffutt, :i \Vi-.t«rn L. T. 1!C) (1H02) 79 S|»pncern' Uasi", 5 Rep. 1('> 244 S^KKirv, (in-fn, L. R. OKxch. 10S(IS74) 231 Htiifford V. liottorne, Cro. Eli/.. '21tH 234 StaffordHhire Co. v. lJiriiiiii(,'hftni Co., L. R. 1 1[. L. 'JTS , . . . 482, 486 Stagff V. Wyatt, 2 Jiir. H!)2 3!)8 /e<' Stair Bowkett Society and Hibun, 42 Ch. 1). 3K<1(1N>>!I) 514 Stalcy V. Barrett, 20 L. J. Cli. 321 (1857) 446 Stanfoni'H Ca«e, Cro. .Tac. fil 4()H Kciiark St.inford, 17 Q. B. D. 259 (1880) 'J, 112, 21'.t Stanley V. (Jrundy, 22 Ch. D. 478(1883) IM V. Stanley, 1 Atk. 455 (173S) 3[. & (J. 70 461 Stockdale v. Nicholson, L. R. 4 E(i. .■{05 (1807) 201 ii>/)rtW< Storks, 3 Wh. & B. 105(1814) 170 Strathy V. Crooks, 1 U. C. R. 44(1844) 37 O. a. 587 (1843) 37 Stratton v. Pettit, 10 C. B. 435 (18.55) 30 Stranks v. St. John, L. R. 2 C. P. 370 (1807) 30 Street v. Commercial Bank, 1 E. & A. 246 ,5!)2 Strickland V. Strickland, 10 Sim. 374(1839) 328 i?f St. Saviours, 31 Ch. D. 412(188(5) 506 St. Thomas Hospital v. Charinp Cross Ry., 1 J. & H. 404 (l^Ol) ... 46 Stubbs V. Martindale, 7 C. P. 52 (18.57) 228 Sturge and G. W. Ry. Co., 10 Ch. D. 444 (1881) 507 Sturgis V. Morse, 3 DeG. & J. 1, 24 Beav. 541 (1857) 459, 475 Sullivan v. Harty, 9 P. R. 500 210 Sunipter v. Cooper, 2 B. & Ad. 223 (1831) 12 TABLE OF CASES. xei PAOB. 210 7!t 244 231 ZU i, 4S« 3'.»() 514 44G 408 2, 21 It VM 3(MI 24i; 4.S 22.') -kI'.I i-j44 47 . 430 13, SCil) J3, 4r.:< '..-), mil . 270 2(17 l:is . 35() 5S3 . 3110 274 lOil r.s-3 . 4. 2SI3 (1888) 34 y. HrinKt-nmn, L. R. 18!)1, 3 Ch. 23;! 443 .Swainstonv. Finn, .ViL. .r.23.')(l882) 7 SwnnHborouKh v. Coventry, !!• Bing. 30."> 4!» Swanton V. Riivtn, 3 Atk. 10.') 478 Svv.anst.mv. Stronir, 21 l^ C. R. 27ft (1861) 87 Swfctnani V. .SwiTiinm, <» I*. R. 83 (i2t'» AV parte Swinlwinks, L. R. 11 Chy. I). .V2.") (1.S710 28 Syers v. Meiropolitaii Board of Works, 3ti L. T. 277 (1877) 7 .SvniondM V. .SyiuondH, 20 I'. C. C. I'. 271 (1870) 17!», I'.tO .Synums v. Leaker, l'> (I. B. D. 032 (1880) 4113 T. Tall))t V. Staniforth, 1 .T. & H. 484 (18(50) !tO A'' TaiKiueray-Williaumt', 20Cli. D. 4S V. Horde, 1 Burr. (JO 303, 4.")7 V. Jermyn, 25 U. C. R. 8(5 (18(55) 245, 252 V. Parry, 1 M. & Gr. 004 357 V. Shum, 1 B. & P. 21 243 V. St. Helens, tt Ch. D. 2(i4 (1877) 48« V. Taylor, L. R. 20 Eq. 1.-.5 (1875) 344 Ttasdidov. Sanderson, 33 P.eiiv. 534 (18()4) 414 Tetvan v. Smith, 20 Ch. D. 724 (1,^82) 102, 104 Tenute v. Walsh, 24 O. R. 300 (1803) 313 Rr Thackwray v. Young, L. R. 40 Ch. D. 34 (18Mt) 40 Tiiaines Conservators v. Inland Revenue, l^ l^. B. J). 270 (18811) .... 12 Thatciier v. Bowman, 18 O. R. 205 244 The Erie & Niagara R. W. Co. v. Rosseau, 17 A. R. 483 480 Tliistle v. Union Forwarding Co., 2'J C. P. 7(1 (1878) 248 Re Thomas, 34 Ch. D. 1(>(J (188(1) 7 Tiiomas v. Cook, 2B.& Ald.]l!t(l.si8) 30,37 v. Cross, 2 Dr. & Sin. 423 (1801) 7 V. Kelly, L. R. 13 App. C.a. 500 (1888) 210 v. Ketteriche, 1 Ves. (Sen.) 334 (1740) 298, 3(X) V. Lane, 2 Ch. Ca. 20 3 V. Tliomas, 2 K. & J. 70 401, 405 - -, •'! ^ ' ':' 'r.'W ill mv^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 mm o 12.2 IB I.I u: iiO 12.0 III 1.8 Photographic Sciences Corporation / o {./ I V. % (P.r /. (/, 1.25 1.4 1.6 -« 6" - ► ^ \ s :\ ,v \ ^9) V *> * o^ '^^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 w o c-* & %' ^ :\ \ O^ ;q. K, 07 446 Tibury v. Silvr 1* Cii D. c 490 Tichborne V vViei%n8J3] !■ ) 421 Tickle V. Brown. 4 A. & E. C.<39(jS36) 487,491 Tidey v. Mollett, 16 C. B. N. S. 208 (1864) 30 Tiliie V. Springer, 21 O. R. 587 (1892) 286, 291 Re Tippett and Newbold, 37 Ch. D. 444 (1888) .509 Toft V. Stephenson, 1 D. M. & G. 28 (1851) ; 449 7 Hare, 1 (1848) 442,447 Tolandv. Bruce, 8 U. O.R. 14(18.51) 230 Tompkins v. Jones, 22 Q. B. D. .599 (1889) 5 Toomes V. Conset, 3 Atk. 2(51 (1745) 272 Topham V. Booth. 35 Ch. D. 607 (1887) 451 Toronto Hospital Trnstoes v. Denhaui, 31 U. C. C. P. 203 (1880) . . . . 243 Street R. W. Co. V. Fleming, 37 U. C. R. 126 (1875) 3 Tottenv. Douglas, 15 Gr. 126(1868) 152 Tottenham v. Bryne, 12 Ir. C. L. R. 376 357 Jie Toward, 14 Q. B. D. 310 (1884) 10 Towsley v. Smith, 12 U. C. R. 558 44 Townshend v. Townshend, Br. C. C. 551 45S /f« Treleven and Horner, 28 Gr. 614(1881) 504 Trash v. Wood, 4 My. & C. 324 (1839) 325, 335 Tress v. Savage, 4 E. & B. 36 (1854) 33 Trimble v. Hill, 5 App. Ca. 342 441 Tristram v. Harte, 1 Long. & T. 186 450 Troop V. Mosier, Russ. Eq. Dec. 180 Ill Truesdell v. Cook, 18 Gr. 535 (1871) 466, 589 ifcTrufort, Traffordv. Blanc, 36 Ch.D. 600(1887) 287 Trulockv. Robey, 12 Sim. 402(1811) 436 Trust & Loan Co. of Upper Canada v. Covert, 30 U. C. R. (1870) . . . . 225 Trust & Loan CoJ TABLE OF CASES. XClll PAQB. Trust & Loan Co. v. Cuthbert, 14 Gr. 410 581 V. Gallagher, 8 P. R. 97 (1879) 124, 578, 579 V. Lawrason. 6 A, R. 286 (1881) 132 V. Rutthn, 1 S. C. R. 584 (1887) 260 V. Shaw, 16 Gr. 446 (1869) 592, 606 V. Stevenson, 20 A. R. 66 (1892) 446 Tryon v. Peer, 13 Gr. 316 (1876) 187, 191 Tucker v. Rodwell, [1894] 8 R. Jan. 115 461 Tiinstall V. Trapper, 3 Sim. 286 597 V. Sanger, McClel. 424 478 Turley v. Williamson, 15 U. C. C. P. 541 (1865) 354, 391 Turner v. Doe d. Bennett, 9 M. & W. 643 361, 399 Re Turner and Skelton, 13 Ch. D. 130 (1879) 504 Tuthill V. Rogers, 6 Ir. Eq. R. 441 424 In re Tweedie v. Miles, L. R. 27 Ch. D. 315 (1884) 177 Twiss V. Noblett, L. R. 4 Eq. 60 393 Twisleton v. Griffith, 1 P. Wms. 310 (1716) 93 Tylee V. Hinton, 3 A. R. 60 (1878) 279 Tyrone v. Waterford, 1 DeG. F. & J. 613 (1859) 11 Tyrwhitt v. Tyrwhitt, 32 Beav. 249 (1863) 117, 118 Tyson V. Jiickson, 30 Beav. 386 (1861) 443 11 u. Union Bank of Scotland v. National Bank of Scotland, 12 A. C. 53 . . 606 Re Union Ins. Company, 23 O. R. 627 (1893) Ill Urmiston v. Pate, 4 Cruise Dig. 4th ed. 390 230 Re Usher, 1 U. C. R. 527 (1845) 178, 184 Usticke V. Peters, 4 K. & J. 437 514 Y. Van Velsor v. Hughson, 9 A. R. 390 (1882) 196, 369, 377, 503 Vance v. Cummings, 13 Gr. 25 (1867) 585, 592 Vanderbury v. Vanalstein, 5 O. S. 4.54 (1836) 230 Vane v. Vane, L. R. 8 Ch. 383 (1872) 473, 475, 476 Van Sickler v. Pettet, 5 L. J. 41, 165 585 Varey v. Muirhead, Dra. 486 (1831) 230 f\. .HI } li ■' ji > ■ ■] 1, • ) ^; ^11 XCIV TABLE OF CASES. PAOE. Vincent v. Going, 1 J. & Lat. G97 426, 427, 430, 431 V. Willington, 4 Long & T. 450 451 Viney V. Chaplin, 2D. & J. 406(1858) 27,28 Ex parte Yokey, 2lCh.D.-ir)3(im.i) 132 w. Wade V. Thompson, 8 L. J. 22 245 Be Waddell, 2 Ch. D. 172 (1876) 506 Wakemanv. Duchess of Rutland, 3 Ves. 233, 504(1797) 224 Waldie and Village of Burlington, re, 13 A. R. Ill (1886) . . 617, 618, 622 Be Walker, L. R. 7 Ch. 120 (1871) 427 Walker v. Gammage, 37 Ch. D. 517 (1888) . . . . 301 Be Walker and Hughes, 24 Ch. D. 698 (1893) 506 Walker v. Jones, L. R. 1 P. C. 50 106 V. Richardson, 2 M. & W. 882 (1837) 36 V. Symonds, 3 Swanst. 64 477 Wall V. Stanwick, 34 Ch. D. 763 461, 495 Wallis V. Hodson, 2 Atk. 114 (1740) 298, 341 Walsh V. Lonsdale, 21 Ch. D. 14 (1882) 33, 34 V. Walsh, Pre. Ch. 54 300 Watson V. Munro, 8 Gr. 60 (1860) 8 V. Woodstock Gas Light Co., 1 0. R. 630 (1882) 359, 363, 366, 369, 378 Warburton v. Parke, 2 H. & N. 64 (1807) 484 Ward V. Cartar, L. R. 1 Eq. 29 (1865) 433 V. Midland Ry. Co. 35 U. C. R. 120 (1874) 626 V. Northumberland and Durham, 12 U. C. C. P. .54 (1862) . . 53(5 V. Robins, 15 ^I. & W. 242 488 V. Ward, L. R. 6 Ch. 789 (1871) 414 18 W. R. 87 (1870) 172 Wardle v. Brocklehurst, 29 L. J. Q. B. 145 (1859) 49 Be Warren, 17 Ch. D. 711 (1881) 508 Warring v. Warring, 5 Ir. Ch. R. 6 440 Warwick v. Queen's College, L. R. 10 Eq. 105 490 Be Waters, 42 Ch. D. 517 (1889) 427 Waters v. Shade, 2 Gr. 457 532, 592 Watson V. Gray, 14 Ch. D. 192 (1880) 414 V. Lindsay, 6 A. R. 618 (1881) 386, 452 Wayland v. Wayland, 2 Atk. 635 (1742) 341 Weatherhead v. Weatherhead, 9 P. R. )l6 (1881) 182 Weaver v. Vandusen, 27 Gr. 480 (1880) 84, 117 Webb V. Bird, 10 C. B. N. S. 283 (1861) 485 V. Dobb, L. R. 4 Q. B. 634 (1869) 243 Webber v. Lee, 9 Q. B. D. 315 (1882) 7 w TABLE OF CASES. XCV FAQB. Webster v. Southey, 36 Ch. D. 19 (1887) 426 and Rejyistrar of Brant, 18 U. C. R. 87 549, 559 Weeks v. Stourton, 11 Jur. N. S. 278 (1865) 101 Weigall V. Waters, 6 T. R. 488 249 Ik Weir, 14 O. R. 38!) (1887) 60 Weir V. Niagara Grape Co., 11 O. R. 700 (1886) 588 Welcome V. Upton, 6 M. & VV. 536 489 Weld V. Scott, 12 U. C. R. 537 (1855) 360, 362 Weldon V. Neal, 51 L. T. 289 495 Wells V. Ritchie, 6 O. 3. 13 (1840) 8 In re Westervelt, 10 L. J. 15 204 Western Loan Co. v. Garrison, 16 O. R. 82 (1888) 358 West London Com. Bank v. Reliance Bldg. Society, 27 Ch. D. 187, 29 Ch. D. 954 (1884) 104 Westmacott v. Hanley, 22 Gr. 382 (1875) 267 Wheeldon v. Milligan, 44 U. C. R. 174 (1879) 37 Wheeler v. Howells, 3 K. & J. 189 42(i, 427, 431 Whetstone v. Dewis, L. R. 1 Ch. D. 99 (1875) 173 R( White and Hindle, 7 Ch. D. 201 (1877) 507 Whiteman v. Hawkins, 4 C. P. D. 13 545 Rt Whistler, 35 Ch. D. 561 (1886) 506 Whistler v. Paston, Cro. Jae, 487 48 White V. Haight, 11 Gr. 420 (1865) 3()4 Whiting to Loomes, 17 Ch. D. 10 (ISSl) 508 Wickhamv. Hawker, 7 M. &W. 78(1840) 483 Wideman v. Bruel, 7 U. C. C. P. 134 (1858) 368 Rr Wight's Mortgage Trust, L. R. 16 Eq. 41 (1873^ 12 Wigle V. Setterington, 19 Gr. 512 598 Wild V. Holt, 9 M. & W. 672 357 Wilkinson v. Conklin, 10 U. 0. C. P. 211 .586, .591 V. Proud, 11 M. & W. 33 (1843) 481 Willett V. Argents, 60 L. T. 735 (1888) 501 Ex. parte Williams, 7 Ch. D. 138 (1877) 132, 134, 135 Re Williams and McKinnon, 14 P. R. 338 (1891) 293 Davies v. Williams, 34 Ch. D. 560 (1886) . . 408 Williams V. Eaile, L. R. 3 Q. B. 739 (1868) 243 V. McDonald, 33 U. C. R. 423 (1873) 400, 409 V. Potts, L. R. 12 Eq. 149 392, 394, 461 V. Sorrell, 4 Ves. 389 (1799) 561 V, Williams, L, R. 2 Ch. 294 414 Re Willis, 21 Q. B. D. 384, (1888) . . . . 133 Willis V. Howe [1893], 2 R. 431 473. 474, 475 V. Watney, 51 L. J. Ch. 181 (1881) 47 Wills V. Palmer, 5 Burr, 261 (1770) 328 Re Wilson, 20 O. R. 397 314 and Houston, 20 O. R. 532 (1891) 507 J'lj ^ i li XCVl TABLE OF CASES. ' i FAOB. Wilson V. Kyle, 28 Gr. 104 (ISSO) 153 V. BiKgar, 26 U. C. R. 85 (1806) 225, 23a V. Campbell, 15 P. R. 254 (1893) 280 V. Wilson V. MacNamara, 12 U. C. R. 446 241 V. Toronto Incandescent E. L. Co. 20 O. R. 3t»7 (1891) . . 202, 313 Wimbledon Local Board v. Croydon Rural Sanitary Authority, 32 Ch. D. 421 502 Winchelsea v. Noriliffe, 1 Vern. 437 (1686) 340 Exp. Winder, 6 Ch. D. 696 424 Winfield v. Fowlie, 14 O. R. 102 (1887) 222 Wiseman v. Westland, 1 Y, & J. 117 595 Wishart v. Cook, 15 Gr, 238 (1868) 375 Withy V. Mangles, 10 C. & F. 215, 8 .Tur. 60 (1844) 298 lie Wolmerhausen, 62 L. T. 541 (1890) 441 Wood V. Abrey, 3 Madd. 417 (1818) 91 V. Beard, L. R. 2 Ex. D. 37 (1876) 33 V. Hurl, 28 Gr. 146 (1881). 165 V, Wand, 3 Ex. 748 (1849) 486 V. Wcx)d, 16 Gr. 471 (1869) 159, 184, 19? Woodcock V. Titterton, 12 W, R. 865 378 Woodhouse v. Murray, L. E. 2 Q. B. 634 ; 12 Woodroffe v. Doe, 15 M. & W. 792 (1846) 412 Woodruff V. Mills, 20 U. C. R. 51 (1860) 117, 583 Woodworth v. Wickworth, Pre. Ch. 527 300 Woolcock V, Dew, 1 F. & F. 337 246 Workman v. Robb, 7 A. R. 380 (1882) 159, 378, 399 Wormald V. Maitland, 35 L. J. E(|. 69 597 Worssam v. Vandenbrande. 16 W. R. 53 357, 409 Wright V. Leys, 8 O. R. 88 (1885) 152 Re Wright v. Marshall, 28 Ch. D. 93 (1885) 506 Wright V. Stansfield, 27 Beav. 8 (1858) 561 Wright V. Williams, 1 M. & W. 77 483, 486, 488, 492 Wrixon v. Vize, 2 Dr. & War. 203 (1842) 447 3 Dr. & War. 104 355 Wychv. E. India Co., 3 P. W. 309(1734) 354 Wyliev.PoUen, 11 W. R.1081 602 Wyman v. Imperial Fire Ins. Co., 20 N. S. R. 487 (1887) HI Wynne v. Stigan, 2 Phill. 305 (1847) • 451 Wyoming V. Bell, 24 Gr. 561(1877) 612 Y. i, 1 Yardly v. Holland, 20 Eq. 428 . . Yates V. Charlton upon Medlock Union, 48 L. T. N. S. 872 460 404 l» (■■ TABLE OF CASES. XCVll I'AOE. ^c Yielding anfl Wfistbrook, 31 Ch. D. ;i45 (I88(i) Ml Yonge V. Mantz, t; Scott, 277 2I(; Yorkshirelns. Co. V.Clayton, 8 (i.B. D. 12;J (1881) 3,1 Young V. p:iliott, 23 U. C. R. 420 (1864) .'C.J), 301 2.5 U. C. R. 334 3(i() Yoi'.ng V. Harris, 6.-> L. T. 4.5 470 II,' Young and Harston, 31 Ch. D. 1118 (188.5) 511 Young V. Hobson, 30 U. C. C. P. 431 (187!)) 40'.) V. Midland R. Co., IfiO.R. 740(188!)) 40.5 V. Wright, 8 r. R. I'JS (187!)) 175 r r z. ;^i.','ler V. Comm., I'i Pa. St. 227 o.-'.O .ja V\ : ' % \% !'''v r- I -1^ It i ! ERRATA AND ADDENDA. Page 2, 6, 7, 8, 9, 40. 44, 46, 49, 51, 59, 88, 109, 112, 141. 173, 183, 248, 257, 262, 272, 280, 281, 286, 329. 346. 353, 355. 359, 367, 409, 411, 432, 443, 461, 473. 489, 508, 358, Note {<]), Lino 10, Note (q), («). («). (c), (k), Line 1, for " R. S. O. 1887," read "R. S. O. 1877." Note (5), "8 V." read "8 & 9 v."' (c), " 29 Car. 11.' read " 29 Car. II." 2nd line from bottom, for " as," read " is." Note (s), for " 7 Q. B. D." read " 17 Q. B. D." (<;), "c. 118," read "c. 18." 6th line from bottom, for " condition," read " consideration. ' Lino 5, for " 49 V. c. 20 (3)," read " 49 V. c. 20 (O.)." Note (m), " (1883)," read " (1884)." To note {h), add "see farther, on subject of appurtenances, Ik Peck and School Board for London, L. R. 1893, 2 Ch. 315." after •' W. N. 115," add " 1893, 1 Ch. 523." for " (1886)," read " (1866)." " 42 V. c. 29," read " 42 ^'. c. 20." " 18 Q. B. D." read " 17 Q. B. D." " Culvert," read " Culbert." " Whitstone," read " Wnetstone." " be," read " been." " Holdness v. Lang," read " Holdernoss v, Lang." 259, in head note, for " Cap. 106," read " Cap. 107." Note (h), add " affirmed 21 A. R. 144." (s), at the end thereof, " See continuation of dis- cussion by Mr. H. Symons, 13 C. L. T. 279. (also pages 362, 363, 371), for " Haggarty," read " Hagarty." Note (h), for " c. 5," read " c. 6." (Z), " Tillis," read '• Tillie." (x), " R. S. O. 1877, • read " R. S. O, 1887." Line 11, "on advancement," read "an advancement." Note (e), " Weslake," read " Westlake." Line 15, " Foster v. Paterson," read " Forster v. Pat- terson." at end of Note {w), for ''supra," read " infra," Note (x(, for " Austee v. Nelins," read " Anstee v. Nelms," and for " Archibald," read " Archbold." (to), Worssam v. Vandenbrande, for " l6 W. R." read " 17 W. R." Line 9 from bottom, for "sub- section," read " section." 6, before " acknowledgment," insert " such." Note (/), Banner v. Berridge, for "28 Ch. D." read "18 Ch. D." Notes (v) and (w), to reference Kent v. Kent, add " 19 A. B. 352 (1892)." Lino 15 from bottom, insert "be " before " shewn." last line of text, for " his user," read " one's user." Line 13, for " Re Lauder and Bagley," read " Re Lander and Bagley." 12 from top, for " application," rend " applicant. " r 11. S O. 188T, CHAPTER 100. 'HI m ^ i • .1 \ » 1 1 4 1 1^'^i i 1 , . uii i ■k;^ ^^Ji An Ac I IXTKHPUKTATrr CoiiPOUKAI, T OHANT AH Fkofkmenth • IXXdCKXT, WoiilXS OF MM s. 4. COXVKYAN'CK HKr.F, 8. 5. KeCKIPT IX DKI KllJIITS OK PUH TlOX OF DE I'AtiTn'IOX, EXC DKKD, S. 8. CONTIXCiEMT IN IM.SPOMKD O WOKDS • (JkAV EFFECT OF, COXVEVAXCE 'I ESTATE, S. 1 Deeds of hak conpoRATro Deeds of hahg. mext l-xne( lU; HER MA, tlic L( enacts as fol 1. Where tho construed in the trary intention a Phraseoli contrary inte which adopt( 1881. H.Il.P.3.- E. S. 0. 1887, CHAPTER 100. An Act respecting the Law and Transfer of Property. I 'I. U- Intf.rpketation, s. 1. coki'ohkai, tk.vrmknts to lie in ghant a» wem. as liveky, s. 2. Feoffments to be by deed and innocent, 8. 3. WoitDs OF limitation unnkcessaky, s. 4. Conveyance hy a person to him- self, 8. 5. Receipt in deed sikficikxt, s. 6. Rights of fuhciiaser as to execu- tion OF DEED, H. 7. Partition, exchange, etc., to be by DEKI), s. 8. CoNTIN(!E\T INTERESTS, ETC., MAY HE niSI'OSED OF BY DEED. S. 'J. Words' (Jrant"ani) "E-xcuange," effect of, s. 10. Conveyance to include whole ESTATE, .S. 12. Deeds of bargain and sale, by corporations. h. 13. Deeds of bargain and sale, enrol- ment UNNECESSARY, S. 14. Provision for sales free from in- cumbrances, 8. 15. Payment into court and applica- tions, s. 10. Implied covenants, a. 17. Powers, mode of execution, etc., H8. 18-20. Auctions of Estates, as. 21-26. Rent charge, effect of partial release, s. 27. Scintilla juris no longer neces- sary, a. 28. continil or earth whatsoever, and, therefore, by a grant of all lands, do pass arable lands, meadows, pastures, woods, moors, waters, marshes, furzes, heath and such like, and the castles, houses and buildings thereupon, but not rents, advowsons, and such like things. Also by grant of any land in possession, the reversion thereof will pass. And yet by the grant of a reversion of land, the land in possession will not pass " (a). " And lastly the earth hath in law a great extent upwards, not only of water, as hath been said, but of air and all other things even up to heaven; for cujiif^ est solum, ejus est usque ad caelum " (b); " also all that is infra, as mines (c), earth, clay, quarries and the like " (d). (a) Touch. 91. {b) Co. Litt. 4(1. See as to this maxim in Re Metropolitan Dist. Ry. Co. and Cosh, 13 Ch. D. 607 (1880) ; Corbett v. Hill, L. R. 9 Eq. 671 (1870) ; Doe T. Burt, 1 T. R. 701 (1787). (c) But see Mines Case, 1 Plow. 336, as to gold or silver. {d) Touch. 90. 1 >"'. I! 1;' Cap. m.] JXrKJU'ltKTATIOX. '.i ]yh(if may pass under land in its ordinary let/al f,fiy)S(': — If land with a run of water upon it be sold the wator passes with the land (e). Houses, mills and woods may pass under " lands " unless its meaning is cut down by the context (/). Heal asiaic, etc., wider than "land " in its ordinary legal sevi^t' : — "Real estate" and "real pro])erty" have a lei,fal sji^'nitication, which endiraces many interests, to express which tlie word " land " is not appropriate (//). " Real estate," liowever, will not cover all possible interests in land : thus in a case under the Insolvent Act of 1875 it was held that an interest in a mortgage was not " real estate " within the meaning of that Act (h). "Messuages " — is synonymous with and includes perhajcs more tiian "house "(',» While properly speaking "mes- suage" may include not only the dwelling house, but also a little garden or plot of ground attached to the dwelling {j ), yet the word does not necessarily imply more than a dwelling house (k), and may even mean a set of chambers, i.e., a part only of a house (/). " At this day, indeed, the distinction suggested in the early cases (m) between messuage and house, in regard to the greater comprehensiveness of the former, is not to be relied on ; and it is clear that even the word messuage (t) Canham v. Fisk, 2 Cr. & J. 126, 2 Tyr. 155 (1831). (./■) 'S>c Ewer v. Hayden, Cro. Eliz. 47<>, C58, followed in lie Portal and Lamb, oO Cli. D. .54 (1885). Aw also as to signification of ''land '' He Bush and Comiiiissioners of Niagara Falls Park, 14 A. K. 73 ''887); Re Melville, 10 0. R. G2(j (1886). (;/) Burton, J., in Toronto Street R. W. Co. v. Fleming, 37 U. G. R. 126 (1875). (h) lie Parsons, 4 A. R. 184 (1879). (/) I'er Butler, J., in Scholes v. Hargreaves, 5 T. R. 46 (1792). (j) Touch. 94. (k) Feene v. Grafton, 2 Bing. N. C. 618 (1836). il) Ih., see also Yorkshire Insurance Co. v. Clayton, 8 Q. B. D. 423 (1881), Jessel, ai.R., citing Evans and Finch's Case, Cro. Car. 340. (m) See Tlloma^s v. Lane, 2 Ch. Ca. 26 ; Doc d. Norton v. WeVjster, 12 Ad. & Ell. 442 (1840) : Hill v. Grange, Plow. 104 ; Smith v. Martin, 2 Wma. Saund. 400. 't I, WFfT I' l:S' REAL PROPERTY STATUTES. [R.S.O. would not now be held to carry land beyond a homestead or orchard, though contiguous to, or enjoyed with it" (ti). Tenemients and hereditamenta: — The most comprehen- sive words of description applicable to real estate are tenemients and hereditaments; as they include every species of realty, as well corporeal as incorporeal (o). " Tenement is a large word to pass not only lands and other inheritances which are holden, but also offices, rents, commons, profits apprender out of lands, and the like, . . . but hereditament is the largest word of all in that kind ; for whatsoever may be inherited is an hereditament, be it corporeal or incorporeal, real or personal or mixed" (p). Thus a freehold rent-charge may be a tenement {q); but an annuity in fee, not being a rent-charge is an heredi- tament, but not a tenement, neither is a condition a tene- ment but it is an hereditament (r). " Tenement, though in its vulgar acceptation it is only applied to houses and other buildings yet in its original, proper and legal term signifies everything that may be holden, provided it be of a permanent nature (s); whether it be of a substantial and sensible or of an unsubstantial^ ideal kind " (f). In its vulgar acceptation. Tenement means house or dwelling-house (u). " The common people still use the word, as in the days of Blackstone, to mean a house " (v). (n) Jarman on Wills, 5th ed. (1893), Vol. I, 735. See Doe d. Cle.Tients v, Collins, 2 T. R. 502 (1788) ; King v. Wycombe Rail Co., 28 Beav. 10-1 (1S60); Roe d. Walker v. Walker, 3 B. k. P. 375 (1803). (o) Jarman on Wills, 5th ed. (1893), Vol. I. 733. \p) Co. Litt. Ga. (q) Dniitt v. Christchurch Colt. Reg., Ca. 328. See Dodda v. Thompson, L. R. 1 C. P. 133 (1865). (r) Sec Hopewell v. Aokland, 1 Salk. 239 (1710) ; 3 Rep. 26 ; Preston Addns. to Touch 91. ■ (») It must l)e permanent ; e.g., a portable booth used by strolling players was held not a tenement : Fredericks v. Howie, 1 H. & C. 381 (1862). (t) 2 Bl. Com. 16. (u) See Yorkshire Ins. Co. v. Clayton, 8 Q. B. D. 423 (1881) ; Daahwood V. Ayles, 55 L. J. Q. B. 10 (1885) ; Minifie v. Banger, W. N. (1886), 189. (v) Per Cotton, L.J., in Dashwoood v. Ayles, mpra. ^"■^ ^>'''Icie, C.J flo other estates'. Ingram, 2 Ves. JuA Ell V ^''■'l^-'^t r^o '5'irctt.sburyGasCo ;--; 8 V. c. 16, 18 "ere Jands shall be it, li! 't; Cap. ICO.] lyTEllPltETA TION. " Hereditament is d^ fined in the text books of authority to signify all such thing.s, whether corporeal or incorporeal, which a man may have to him and his heirs by way of iniieritance, and which, if they be not otherwise bequeathed, come to him who is next of blood, and not to the executors or administrators, as chattels do " (iv). Hereditament is used not to describe the quantum of interest, but the thing itself which is the subject-matter of the interest, and so leaseholds may be included (x). Effect of ivords " messuages, lands, tenements and hereditaments" : — The collocation of words in the present section is not a particularly happy one. For there are several reported cases where the words " tenements and hereditaments " have had their signification cut down by tlieir being used following " messuages " and other words ; on the principle that they must be understood according to the antecedent enumeration and as comprising only matters ejusdem generis (»/). Origimd section: — The words of this sub-section seem to be an amplification of the definition of lands to be found in the Land Clauses Acts of 18-15 {z), viz., " The word 'lands' shall extend to messuages, lands, tenements and XxavinXiiiiVivanis of any tenure." The words "of any tenure" are not necessary in Ontario where land is held in free and common soccage (a). And, (('•) \yilde, C..T.. in Lloyd v. Jones, G C. B. 90 (1818). [x) Tompkins v. Jones, 22 Q. B. D. .59!) (1889); see Chew v. Holroyd, -S E.X. '24!» (ls.52) ; Moore v. Denn, 2 Bos. & P. 251 (1890) ; see further as to a "use," I'lovvd. .58 ; 3 Rep. 21) ; and also Norria v. Le Neve, 3 Atk. 81 (1744), aa to other estates ; as to meaning under Stat, of Frauds, see Buckeridge v. Ingram, 2 Ves. Jun. ()o7 (1795). (.'/) *'■(' East London Waterworks Co. v. Mile-End Old Town, 17 Ad. & Ell. N. S. 512 (1851) ; Colhrooke v. Tickell, 4 Ad. & Ell. 91G (183G) ; King v. Mancliester & Salfr)rd Waterw >.rks Co., 1 B. & C. G30 (1823) ; and also Keg. v. Shrewsbury Gas Co. , 3 B. & Ad. 21G (1832). (-') 8 V. c. IC, 18 & 20 (Imp.), s. 3. (n) 31 Geo. III. c. 31 (Imp.), s. 43 (1791) :— " And be it further enacted by the authority af(.resaid, that all lands wiiich shall be hereafter granted within the said Province of Upper Canada, shall Ixj granted in free and com- mon soccage, in like manner as lands are now holden in free and common soccage in that part cf Great Britain called England ; and that in every case where lands shall be hereafter granted within the said Province of Lower 4< ^1 /''■' 6 REAL PROPERTY STA TUTES, [R. S. 0. besides, these words have in England given rise to a doubt whether an incorporeal hereditament — not being the sub- ject of any tenure — would be included (6). Such a doubt is not possible with the words of our definition, " whether corporeal or incorporeal." Classes of Incorporeal Hereditamenta : — " There are three kinds of pure Incorporeal Hereditaments : 1. Appendant, e.rj., Seignories, Manorial Rights of Com- mon, Advowsons (appendant to a manor) ; 2. Appuitenant, e.g., Rights of Common, of Way, or of Light annexed to land and arising by grant or prescrip- tion ; 3. In gross, e.g., Seignories severed from a Manor; Rent-Seek ; Rent-Charge ; Common in Gross ; Advowsons (generally); Tithes; Titles of Honour ; Offices " (c). Of practical importance to us are those incorporeal hereditaments in class 2, and also "Rent-charge" in class 3. Estate : — The meaning of this word is investigated with very great pains by Haggarty, J., in O'Neil v. Carey (d). He says : " There is a vast mass of cases illustrating the meaning of the word ' estate ' in wills ; nothing that I have as yet seen as to its use, by itself, in a deed I have come to the opinion that, by the legal usage of cen- turies, whethei' in devises or elsewhere, the word " estate " has acquired an intrinsic meaning, including interest in landed as well as other property''. That in popular phrase- ology, the estate of a deceased man is universally under- Canada, and where tlie grantee thereof shall desire the same to be granted in free and common soccage, the same shall be so granted ; but subject, never- theless, to such alterations with respect to the nature and consequences of such tenure of free and ccmmon sf;2cape as may l)e established by any law or laws «-hich may be made by His Majesty, his neirs or successors, by and with the advice and consent of the Legislative Council and Assembly of the Province." {(>) See I'inchin v. L. & B. Ry. Co., 5 D. M. & G. 861 (1854) ; G. VV. Ry. Co. V. Swindon, L. R. 9 App. Cas. 808 (1884). (c) Stroud's Judicial Dictionary, p. 381. As to an estate in a church pew, .^ee under sub-section 7, infra, {d) 8 C. P. 33!t (IS.W), citing over a score of authorities ; aee also Di:e Evans V. Evans. !t A. & E. 7L'G (183!t) ; McCabe v. McCabe, 2'J U. C. R. 378 (1863); Macdonald v. The Georgian Bay Lumber Co., 2 A. R. 36 (1877). U :: Cup. 100.] INTERPRET A TION. stood to mean his general property, real and personal, that Dopularly ' a man's estates ' would certainly be de- scriptive of his landed possessions." Interest : — By section 4 of the Statute of Frauds (e) no contract for the sale of lands, tenements or hereditaments or "any interest in or concerning them" is valid unless evidenced by writing. Some of the decisions have given this phrase " any interest," etc., a very wide significance. Thus in Webber v. Lee (/), the right to shoot and carry away game was held an interest in land ; and in Lavery V. Fursell (g), the sale of standing buildings to be taken down and cleared away in two months was held a sale of an interest in land {h). As to growing ti-ees, see Stimmers V. Cook, 28 Gr. 179 ; Macdonell v. McKay, 15 Gr. 391 ; McXe'dl V. Haines, 17 O. R. 479; and cf. McGregor v. McXeill, 32 U. C. C. P. 538. Under the Imperial Land Clauses Consolidation Act, 1S45, an interest in land would include an equitable inter- est (i), but not a contract for purchase (j). "And to money subject to be invested, etc." This is by no means an unusual extension of the meaning of land. The rule in equity is that money directed to be laid out in land, is by " transmutation " of the courts administering eijuity, changed into land, in accordance with the maxim (<•) 29 Car. n, c. 3. (/) 9 g. B. D. 31.5 (1882). ('/) 3!) Chy. D. .508 (18S8) ; see also McManus v. Cooke, 35 Ch. D. 681 (1887) ; Gray v. Smith, 43 Ch. D. 208 (1889). (/)) For cases under Mortmain Act, see Attree v. Halve, 9 Ch. D. 337 (1878), and cases there reviewed ; also lie Harris, 15 Ch. D. 501 (1880) ; Jarvis V. Lawrence, 22 Cli. D. 202 (1882) ; Brook v. Badley, L. R. 3 Ch. 672 (1868) ; J{e Christmas. 33 Ch. D. 332 (1886) ; He David, 43 Ch. D. 27 (1889). (0 Martin v. London, C. & D. Ry. L. R. 1 Chy, 501 (18G6). (.;•) Tasker v. Small, 3 Myl. (1886), and Lacey v. Hill, L. R. 19 Kq. 346 (1875), niterest in part of proceeds of sale ; Thoiniui v. Cross, 2 Dr. & Sin. 423 (1864). ' I'- 1 \ .'■! 1 ^r- 1F I I 8 REAL PROPERTY STATUTES. [R. S. 0. "that what is agreed to be done must he considered as done " (k). "Mortgage." (2) "Mortgage" shall include every instrument by virtue whereof land ia in any manner conveyed, assigned, pledged or charged as security for the payment of money or money's worth lent, and to be reconveyed, re-assigned or released on satisfaction of the debt. R. S. O. 1877, c. 98, s, 1 (3). "Mortgagor." (3) " Mortgagor " shall include every person by whom any such conveyance, assignment, pledge or charge as aforesaid is made. "Mortgagee." (4) " Mortgagee " shall include every person to whom or in whose favour any such conveyance, assignment, ])ledge or charge as aforesaid is made or transferred. R. y. O. 1877, c. 98, s. 1{J, 5). Mortgage distinguished from purchase: — There are four den^vees by which a mortgage shades into a purchase (1) a mortgage, unequivocally a mortgage; (2) an appa- rently absolute conveyance with a collateral arrangement for redemption (/);"(3) an absolute convej^ance, with an agreement for repurchase (m) ; and (4) an absolute con- veyance simply. It is often a nice point to decide how far an insti'ument as a mortgage or a deed of purchase. The matter has been discussed very fully in an article in the " Canadian Law {k) Guidot V. Guidot, 3 Atk. 25G (1745) ; see also Rashley v. Masters, 1 Ves. L'Ol (17StO); Chandler v. Tocock. 15 Ch. D. 4!)1 (1S80) ; Re Greaves, 23 Ch. D. 313 (1883). (/) .SVe Bartels v. Benson, 21 U. C. R. 143 (1801) ; Mcllroy v. Hawke, o Gr. 51G (185(1) ; Kerr v. Murray, 6 Gr. 343 (1857) ; Watson v. Munro, 8 Gr. 00 (18G0); Bernard v. Walker, 2 E. & A. 121 (18(53); Sampson v. McArtl. ir. H «4r. 72 (18G0) ; Cherry v. Morton, 8 Gr. 402 (18('.()) ; Malloch v. Pinhev, it (ir. 550 (18()2) ; Fallon v. Keenan, 12 Gr. 388 (18GG) ; Cayley v. McDonald', 14 Gr. 540 (18G8) : Healey v. Daniels, 14 (ir. 633 (1808) ; Dornyn v. Fralick, 21 Gr. 1<(' V, Hi that tiie e the cleare character." (5) "Propu aiul any debt, interest. 49 "* The cla fuller ; aft phrase " an^ or personal The del include the Property all terms w ,, .(") IC. L. Evidence." (") 20 S. C. [p) 11). at p (y) 9 Moore ('•) Cass. Di («) See Ex. i Q. B. D. 222. ^i. '• li Cap. 100.] INTERPRETA TIOX. Times," by Mr. C. H. F. Lefroy (n). It will suffice, there- fore, to refer the reader to that article, to the cases cited above, and to the judgment in the recent case of McMicken V. Ontario Bank {o). In this last-mentioned case, Gvvynne, J., (^)) says: "I do not think it necessary to review the cases in which parol evidence has been received to qualify and cut down a deed of conveyance of laxid which is absolute in its terms into a mortgage. In cases of this kind, as is laid down by the Privy Council in Holvies v. Matthews (q), the onus rests altogether upon the ai)pellant not only to rebut the presumption that the title as appear- ing in the written instrument i& in accordance with the intention of the parties, but he must also establish to the satisfaction of the appellate court that the judgment of the court below adverse to his contention is erroneous. In Rose V. Hichey (r), decided in this Court in 1880, we held that the evidence necessary for this purpose must be of the clearest and most conclusive and unquestionable character." (a) "Property" .shall include real and i)ersonal property, "Property." and any debt, and any thing in action, and any other right or J-'IV ',1'*' interest. 49 ^\ c. 20, s. 3 (1). '^"'^o ''" The clause of the Imperial Act (s. 2, s-s. 1) is somewhat fuller ; after " real and personal property " occurs the phrase " and any estate or interest in any property, real or personal." The definition of property in the Imperial Act will include the chattels contained in a bill of sale {s). Property : — " Property is the most comprehensive of all terms which can be used, inasmuch as it is indicative (") 1 C. L. T. 403, 461, "Mortgage or no Mortgage : Admission of Parol Evidence." (") 20 S. C. R. .548 (181)2). [p) 11). at p. 575, referring to Lincoln v. Wright, 5 Jur. N. S. 1142 (1859). ('/) 9 Moore P. C. 413. (v-) Cass. Dig. 292. Is) See Kx parte Stanford, 7 Q. B. D. 259 ; A'jJ p'U-te Official Receiver, 18 Q. 15. D. 222. , V ^^0 ' Ik ■ik 1 1 ■ V, iK S^ Mi M ,; .t. iif t i,r 10 SEAL PROPERTY STATUTES. [R. S. 0. and descriptive of every possible interest which the party can have " (t). The burden of proof lies upon those who say that the word is not used in its ordinary, correct and proper sense {u). Distinction between property and power : — " The power of a person to appoint an estate to himself, is no more his ' property ' than the power to write a book or to sing a song " {v). " A ml any debt . . . and any other right " ; — The future receipts in a person's business are not comprised in property (iv). It seems that unpaid capital in a joint stock company is not within a power enabling the directors to manage " property " of the company (x), but might be if the power extended to property and rights (y). " And any thing in action " : — " Property in action, or such where a man hath not the occupation, but merely a bare right to occupy the thing in question ; the possession whereof may, however, be recovered by a suit or action at law ; from whence the thing so recovered is called a thing, or chose in action. Thus money due on a bond is a chose in action ; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. If a man promises, or covenants with me, to do any act, and fails in it, whereby I suffer damage, the recompense for this damage is a chose in action ; for though aright to some recompense vests in me at the time of the damage done, yet what and (t) Jones V. Skinner, 5 L. J. Ch. 90 (1835). {«) Morrison v. Hope, 4 De G. & S. 23G (1851). (v) Re Armstrong, 55 L. J. Q. B. 579 (1885). (w) In Bankruptcy, /'Jx parte Nichols, 22 Ch. D. 782 (1882). Cf. Re Toward, 14 C^. B. D. 310 (1884) ; Ite Davis, 22 Q. B. D. 193(1888). As to alimony, see Re Robinson, 27 Ch. D. IGO (1883); Harrison v. Harrison, 58 L. J. P. D. & A. 28 (1888); Jump v. Jump, L. R. 8 P. D. 1.59 (1882). (x) Bank of S. Australia v. AVjrahams, L. R. 6 P. C. 205 (1874). (H) Howard v. Patent Ivory Co., 38 Ch. D. 15G (1888). ,s',;e also Bower v. Foreign & Col. Gas Co., W. N. (1877) 222. r Cap. 100.] how lar^ by verdi legal j'ud " Pro a wife's possessio (f.) "Cor appointmen aiit to surrei settlement any iiroi)ert with that of c. 20, 8. 3 (3), Tliis J c. 98, s. 1 errant, leaf the detinil Convex present si; Otherwise Doc Bake) words "de''• ■.'ituin in a :vi olfj V. Arm ' •tianan v. il ,i J'') ; as to I ' *"i"): Colquho I'tiiv, ,?(■(> "Jeji i^^^l), /feALiUj («) 7 U. C. 200(1839); Soc ('') 3 V. c. Church of J-Jngl ('•■) West R, r Cap. 100.] INTERPRETA TION. 11 how large such I'ecoinpeuse shall ba, can only be ascertained by verdict ; and the possession can only be given me by legal judgment and execution " (y y). " Property " was held to include a husband's interest in a wife's chose in action which he had not reduced into possession (s). " Convey- ance. " (fi) " Conveyance" shall include feoffment, grant, assignment, appointment, lease, settlement, and other assurance, and coven- ant to surrender, made liy deed, on a sale, mortgage, demise, or settlement of any property or on any other dealing with or for any property; and "convey" has a meaning corresponding "Convey." with that of conveyance. R. S. O. 1877, c. 98, s. 1 (2) ; 49 V. c. 20, s. 3 (3). This definition is a fusion of the definition in R. S. O. c. 98, .s. 1 (2), viz: "Conveyance shall include a feotFment, grant, lease, surrender or other assurance of land," and of the definition in 49 V. c. 20, s. 3 (3). Conveyance made hy deed : — The conveyance in the present sub-section is to be an instrument made hy deed- Otherwise conveyance has a wider signification. Thus in Doe Baker v, Clark (a), Robinson. C.J., interpreting the words "det^d or conveyance " in a statute (h), cited a number of authorities in favor of the decision he came to, that a will of lands is treated in law as a conveyance. Ordinary sense of " conveyance": — In a case under one of the Imperial Registry Acts (c), Lord Cairns, L.C., said : (.'/;/) Bl. Comm. Vol. II. p. 396. (;) Re Biaggi, :!(5 S. J. -417 (1882). For further cases en meaning of "property."' so;' Re McCutcheon v. Corporation of City of Toronto, 22 1'. 0. R. ai3 (1803) ; Kidd v. O'Connor. 43 U. ('. R. 193 (1878) ; as to inter- ; >-.it;on in a \nll, .sw Tyrone v. Waterford, 1 De G. F. & J. (il3 (1859), Ai oM V. Arnold, 2 My. & K. 3(55 (1834), Gover v. Davis, 29 Beav. 222 (1860); ' •tianan v. Harrison, 1 J. & H. <:02 (18(11), Belamy v. Belamy, 35 Beav. 4G9 i''"i;; as to meaning in Succession Duties Act, Re Cigala, 7 Ch. D. 351 ' *7,); Colqnhoun v. Brooks, 14 App. Ca. 493 (1889); as to meaning in Bank- urcy, see Sear v. Lawson, 15 Ch. D. 42G (1879); /{e Higgins, 21 Ch. D. 85 ^i^81). He Maughan, 14 Q. B. D. 986 (1884). («) 7 U. C. R. 44 (1850) ; but cf. Hihblewhite v. McMorine. 6 M. & W. 200 (1839) ; Societe Generale de Paris v. W.alker, 11 App. Ca. 20 (1S85). (A) 3 V. c. 74 (U.C), .«. 16, relating to the conveyance of lands to the Church of England. (c) West R.'ding Registry Act, 2 & 3 Anne, c. 4. if ^!n H. 12 REAL PROPERTY STATUTES. [R. S. 0. " There is no magical meaning in the word " conveyance "; it denotes an instrument which carries from one person to another an interest in land. Now, an instrument giving to a person a charge upon land gives him an interest in the land — if he had a mortgage already it gives him a further interest; and so, whether made in favour of a person who has already a charge, or of another person, it is a conveyance of an interest in the land " {d). "Made by deed ": "A deed fucturti. This word (deed) in the understanding of the common law is an instrument written in parchment or paper, whereunto ten things are necessarily incident, viz., first, writing ; secondly, in parch- ment or paper ; thirdly, a person able to contract ; Fourth- ly, by a sufficient name ; fifthly, a person able to be contracted with; sixthly, by a sufficient natne ; seventhly, a thing to l)e contracted for; Eighthl3^ apt words r^ juired by law ; Ninthl}', sc.iling {c) ; and tentlily, delivery. A deed cannot be written upon wood, leather, cloth or the like, but only upon parchment or paper, for the writing upon them can be least vitiated, altered or corrupted" (/). j\Ienning of "forvmrd a deed" : — Where one agrees to " forward " a deed, it is incumbent on him to do all that is necessary to forward it, i.e., give it being, prepare and execute it as well as forward it (g). Meaning of "execute aiul deliver a deed": — " We think, under the agreement, as it is set out, the deed was to be {d) Credland v. Potter, L. R. 10 Ch. 8 (1874). For further cases as to "conveyance" under tlie R,Bgistry Acts (Imi).), rox Sunipter v. Cooper, 2 B. & Ad. 223 (1831) ; Nev. v. Peiineli, 3.3 L. J. Ch. 23 (1803) ; Re Wight's Mort- gage Trust, L. R. 1« Eq. 41 (1873) ; Moore v. Culverhouse. 27 Beav. 039 (IH.jD); R. V. Truro, 21 Q. B. D. 55;) (1887). For other cases, m'c Phelps v. Hornstedt, L. R. 8 Ex. 2(5 (1872) ; Woodhouse v. Murray, L. R. 2 Q. B. 634, 4 Ih. 27 (18()8) ; Christie v. Inland Revenue, L. R. 2 fix. 4i; (18G(>) ; Thames Conserv- ators V. Inhmd Revenue, 18 Q. B. D. 27!) (188(i) ; Inland Revenue v. Angus, 23 Q. B. D. 579 (1889) ; Lewis v. Inland Revenue, 37 W. R. 509 (1888). ((?) Sealing should be with wax or a wafer, a mere circle enclosing the words "L.S." or "place for seal" is insufficient, Re Balkis Co., 30 W. R. 392 (1888). (/) Co. Litt 35 b. For further inf-'>rmation, sec Elphinstone on Deeds. (g) Dalgleish v. Conboy, 26 U. C. C. P. 264 (1876). I Cftp. 100.] INTERPRETA TION. ]3 prepared by the plaintiff — that is by the purchaser — as is usual, when the writing does not indicate a contrary inten- tion, aa we think it does not here, because the defendant does not engage to convey or iimke a title or conveyance . . . but only that he will execute and deliver a deed, which Dieaiis no more, we think, than that he will exe- cute " (/i). Convey :— The word "convey " has not the legal techni- cal meaning assigned to the word " exchange " (i). "Convey, assign and deliver" are operative words of conveyance {j). . "Purchaser" Bhall include a lessee or' mortgagee, and an intending purchaser, lessee or mortgagee, or other person, who for valuable consideration, takes or deals for any property ; and "purchase" has a meaning corresponding with that of pur- chaser ; but sale means only a sale properly so called. 49 V. c. 20, s. 3 (6). " Purcha- ser." "Pur- chase." Purchase : — Purchase has two significations, a technical and a popular. Technically speaking, a person acquires " by words of purchase " and is a " purchaser " when he obtains title in any other mode than by descent or devolu- tion of law (k). The popular acceptation of the word purchase is as a correlative to the word " sale." This popular usage is of considerable antiquity. Thus in 27 Elizabeth, c. 4, the word occurs ; and according to Mr. May (I), "the word 'pur- chase ' as used in the statute, of course refers to cases of selling and purchasing in the ordinary and vulgar accepta- tion of the word, and not in the technical sense of any person who obtains land otherwise than by descent." {h) Smith V. Doan, 15 U. C. R. 630 (1858). Robinson, C..T. (t) Draper, C.J., in Leach v. Dennis, 24 U. C. R. 131 (18G4). (./) Patterson, J. A., in McDonald v. Georgian Bay Lumber Co., 2 A. R. 47 (1877). »S'ee Cameron v. Wait, 3 A. R. 175 (1878), for effect of "may con- vey." {k) Co. Litt. 18 b. (0 Fraudulent Conveyances, 2nd ed. 217 ; citing Ex parte Hilman, 10 Ch. D. 025 (1879). i I; !•" h ■ 1 ' . f ' ill ♦-, i W} 14 HEAL PROPERTY STATUTES. [U. S. 0. Under the same Act of Elizabeth it has been held in the Canadian Courts that a judgment creditor is not a pur- chaser for value (m). " Sdle " implies that there shall be a vendor and a purchaser (n). Purchase of j^^w : — "The words ahsolnte 2->uvchase of any pew in the church, mentioned in the 7th section of tlie statute [Church Temporalities Act], do not mean that the purchaser is to hold free from all cltiim or control of the incumbent or churchwardens, or free from all intei'est of these persons in the <;'eneral property of the church ; but they are used in opposition to the rights of leaseholders of pews, and of those who have onl}'^ sittings ; and subject to the necessary incidents of such species of property, a person may not improp.erly be said to be an nhsolate purchaser of, and to hive a frcliohl of inheritance in, the pew which he has bought ; for the right of freehold in a church onlv extends to the sittings therein : Paivson v. Scott (Say. 177); iind possession as has just been stated must be taken to be at all times secundum suhjectam onateriam." " The estate or interest which a pew-holder has is a tenement as much so as an advowson in gross : (julbj v. Bishop of Exeter (4 Bing. 294) ; and it lies only in gi'ant, and not in livery, because it is an incorporeal heredita- ment ; Co. on Litt. 9th ed." (o). Corporeal tenements, etc., deem- ed t(i lie in grant, etc. 2. All corporeal tenements and hereditaments shall, as re- gards the convej'ance of the immediate freehold thereof, be deemed to lie in grant a^ well as in livery. R. S. O. 1877, c. 98, s. 2. lynmediate freehold : — B}'' immediate f) eehold is meant the first of all the estates of freehold. Thus where A. is i 1 ■ ,' t ■!■, ■ ■ (m) Gillespie v. Van. Egmondt, G Gr, 533 (1858) ; Goodwin v. Williams, 5 Gr. 539 (185(5). (h) King V. England, 4 B. & S. Q. B. 785 (1804) ; therefore where a land- lord took distrained goods at an appraisement it was held not a sale under 2 W. & M. c. 5. (o) Ridout V. Harris, 17 U. C. C. P. 88 (1866). Cai).10O.] a RANT AND LIVERY. 15 teiinnt for life, loinainder to B. for life or in fee, etc., B. lias an edate of freehold, but A. has tlio immediate estate of freehold ( p). Gm at It nd livery : — "Grant" is here opposed to " livery " and so is used in a technical sense. " The word (grant) beinf,' taken more strictly and properly, it is the grant, conveyance or gift by writing, of such an incorp: real thing as lieth in grant and not in livery and cannot be given or granted by word only without deed " iq). A gi'ant, then, is a transfer by deed. A livery is the transfer or delivery of the seisin, i.e., feudal possession ; and though usually it was accompanied by the delivery of a deed (called a deed of feotfment), still the main essential of a livery was a physical ceremony, such as the vendor handing tiie pii)-chaser a turf of land ; a ceremony which ordin- arily took place on the land itself and was symbolic of an actual delivery of the land. The rule in feudal times was to have a livery of every- thing that could be delivered, i.e., of all corporeal property. But besides corporeal there exists another kind of property which, not being of a visible and tangible nature, is denominated incorporefd. This kind of property, though it may accompany that which is corporeal, yet does not in itself admit of actual delivery and must therefore be trans- ferred by writing, i.e., by grant. Thus aro.se the distinction that incorporeal property was said to lie in grant and corporeal property was said to lie in livery (?'). Barr/ain and sale; lease and release: — Livery of seisin has its disadvantages. Accordingly \arious shifts have been tried to get over the necessity of so cumbrous a formality ; which shifts the present enactment (.s') has (p) 1 Preston's Con v. at p. 48. (?) Touch. 228. {r) Williams on Real Property, 7 ed. p. 220. (i) Originally section 2 of 8 & V. o. 10(5 (Imp.) commonly ciillel the Real Property Amendment Act of 1845. Enacted in U. C. by 14 & 15 V. c. 7, 8. 2. ;,; J . i 11 K T 16 HEAL PROPERTY STATUTES. [R. S. 0. reiulcred unnecestjary by abolishing the necessity for livery. One of the earliest devices was to deliver the property in trust for, or as it was then termed, " to the use of," the purchaser. Then came the Statute of Uses (<), the effect of which is to convert such a use into the legal seisin. Of this statute the conveyancers took advantage to make a conveyance called a " bargain and sale," i.e., a Hale to the use of the purchaser, the effect of which is to transfer the seisin without a livery of the same. The "bargain and sale " is a form of deed that formerly was much used in Upper Canada until the introduction of the short forms of conveyances. In England more than at any time in Canada were always felt certain disadvantages that were inherent to the bargain and sale. The doctrine that there cannot be a use upon a use renders this form of conveyance improper for anything like a complicated settlement {u). For the bargainor can transfer the seisin to the bargainee but cannot give the bargainee a power of appointment whereby a third party by virtue of the deed of bargain and sale is invested with the seisin ; the effect of the convey- ance is exhausted in transferring the seisin to the bargainee. Hence in England where settlements are very usual, another form of conversance was imperatively necessary, and was the more desired as the bargain and sale was required to be publicly enrolled (f), thereby destroying the privac}'' of the conveyance. It was soon discovered that the statute as to enrolments, being concerned only with freeholds, did not affect bargains and sales for terms of years. Moreover a grant for a term of years, i.e., a lease, not being a conveyance of freehold, did not require livery of seisin, and a subsequent release had the effect of vesting the seisin in the lessee in possession. Accordingly a bargain (t) 27 Hen. VIII. c. 10. (m) See Challia on Real Property, 316. (v) 2:1 Hen. VIII, c. 16. I', c»p. iw.] FEOFFMENT, 17 and sale for a year, followed by a release, became the iiKxlern conveyance by lease and rcletise, a form of transfer (luito connnonly f jund in registered titles in Ontario. This conveyance necessitated two deeds. The first step was taken in 1841 to simplify matters by "An Act for rt'iiderin^ a Release as Effectual for the Conveyance of Freehold Estates as a Lease and Release by the same parties " {iv). The next and final step was this present enactment. There is no longer the necessity for a livery ; although the ceremony itself is still a possible mode of conveyance subject to the following section. 3. A ff'offinent otherwise than by deed shall be void at law, Fcoffinentd ami III) fi-offiiit-nt shall have any tortious oporation. 11. 8. O. lillc^rf ^ 1877, c. !)H, 8. a. void. Feoffment: — The feoffment is a form of assurance not often occuring in titles to land in Ontario. There is, how- ever, nothing to prevent the use of so cumbrous a form either in Ontario or in England. " It is believed that certain old corporate bodies still retain, at all events to some extent, their ancient habit of conveying by feofF- nient " (x). The effect of the first portion of the present section is to make the deed of feoffment the important feature in the conveyance. That the deed was not always necessary we learn from the following passage : " This kind of convey- ance albeit it may be made in most cases by word without any writing, yet is most commor.ly done by writing, and tills writing is then called a deed or charter of feoffment ; but hence the division of a feoffment by word, or a feoff- ment by writing " (y). ^!i^ 1 ^ 1 1 (w) 4 & 5 V. c. 21 (Imp.) ; cf. 12 V. c. 71 (Can.) s. 2. U) Challis on Real Property, at p. 321 (1885), referring, of course, to English corporations. ((/) Touch, p. 203. u.n.p.s. — 2 18 REAL PROPERTY STATUTES. [R. S. 0, The effect of the Statute of Frauds {z) would be to necessitate a writing, and by the present clause that writ- ing must be a deed (a). Orijin of prefent section: — The original enactment from which the first portion of this section is taken id as follows, — " That a feoflfment made after the said 1st October, 1845, other than a feoffment made under a custom by an infant, shall be void at law, unless evidenced by deed " (b). We have omitted from our Act (c) the exception as to customary conveyances by infants, as we have no "customs" in this Province (d). The second portion of the present section is taken from the next succeeding section of the Imperial Act (e). Tortious operation: — The nature of a feoffment with a tortious operation will be exp'ain< i by the followintj passage, — " The former delivery of the seisin or feudal possession, which always took place in a feoffment, rendered it, till recently, an assurance of great power ; so that, if a person should have made a feoffment to another of an estate in fee simple, or of any other estate, not warranted by his own interest in tlie lands, such a feoffment would have operated hy wrong, as it is said, and would have conferred on the feoffee the whole estate limited by the feoffment along with the seisin actually delivered. Thus if a tenant for his o..'i"! life should have made a feoffment of the lands for an estate in fee simple, the feoffee would not merely (z) 20 Car. II. c. 3, s. 4. (a) Ah to e(.ect of destruction of feoffment-deed, see Doe d. Edgitt v. Stiles, 1 Kerr, 338 (1841). (h) 8 & 9 V. c. 106 (Imp.), s. 3. The custom referred to is the custom of gavelkind. (o) Originally 14 & 15 V. c. 7 (Can.), s. 3. (d) Gran.l Hotel Co. v. Cross, 44 U. C. R. 153 (1879). (t) 8&9V. c. 106 (Imp.), a. 4. Cap. 100.; have ac would wrong ( life was to the pe iu fact a to anotlu In 001 ment by est, and w IK. Cap. 100.] INAPPROPRIATE WORDS OF LIMITATION. 19 have acquired an estate for the life of the feoffor, but would have become seised of an estate in fee simple by wrong (/); accordingly, (mch a feoffment by a tenant for life was regarded, as , ^ have seen, as a cause of forfeiture to the person entitled in reversion ; such a feoffment being in Fact a conveyance of his reversion, without his consent, to another person " (g). In cunse(juence of the present enactment, such a feoff- ment by a tenant for life will merely convey his life inter- est, ami will not bo a cause of forfeiture. Wor.i.s of lintitatioQ uiint!U(!.'*- sary. Imp. Act, s. 51. 4. (1) In a (loed, or other in.4trument, it shall not be neces- sary, in the limitation of an estate in fee simple to use the word heir.-! ; or in the limitation of an estate in tail to u.se the words heirs of tlie body ; or in the limitati(m of an estate in tail male or in tail female, to use the words heirs male of the body, or heirs female of the body. (2) For the purpose of such limitation it shall be suflficient in a deed, or other instrument, as in a will to use the wordi in fee simple, in tail, in tail male, or in tail female, according to the limitations intended, or to use any other words aufficiently indiciting the limitation intended. i'A) Where no words of limitation are used, a conveyance nhM jiass all the estate, right, title, interest, claim and demand, whii'li the ccmveying parties respectively have, in, to, or on the pr()p<'rty conveyed, or expressed or intended so to be, or which tlify respectively have power to convey in, to, or on the same. This sub-section applies only if and as far as a contrary inten- tiuii does not appear from the conveyance, and shall havf .'act s\ilijict to the terms of the conveyance and to the provisions tlu'i'eiii contained. (4) This section applies only to conveyances made after the first day of July, 188(1. 41) V. c. 20, s. 4. Section 4 may best be treated under two divisions : I. Effect of inappropriate words of limitation. II. Effect of no words of limitation. I. Inappropriate or non-technical ivorJs of liniitn- tion: — Under this heading come sub-sections (1) k {2}, if) A feoffment had the effect of barring or destroying contingent remainders > f > 1 *^' b 11 5 M 1-1 \ 'li w 20 REAL PROPERTY STATUTES. [R. S. 0. which are an expansion of the following provision of the Imperial Act. (h). "61. (1) In a deed it shall be sufficient, in the limitation of an estate in fee simple, to use the words ' in fee simple,' without the word ' heirs,' and in the limitation of an estate in tail, to use the words ' in tail ' without the words ' heirs of the body,' and in the limitation of an estate in tail male or in tail female to use the words ' in tail male 'or 'in tail female ' as the case requires, without the words ' heirs male of the body ' or ' heirs female of the body.' " As in a will : — It will be noticed that our Legislature has inserted the words " or other instrument," " as in a will," " or to use any other words sufficiently indicating the limitation intended." The words " as in a will " in the second sub-section produce a slight ambiguity. Is it the meaning, (1) that it shall be sufficient in a deed or other instru- ment {e.g., a will) to use, etc. ? or (2) that it shall be sufficient in a deed or other instru- ment (not a^will), just as it is sufficient in a will, to use, etc ? A little consideration will show us that the latter is the correct interpretation and that it is the intention of the Legislature to set a rule for interpreting limitations of estates in deeds uniform with the rule already existing in the case of wills. Thus as'^^to deeds : — As may be inferred from the first sub-section, the words " heirs," " heirs of the body," etc., are the appropriate words to limit estates in fee simple, fee tail, etc. Not only so, but the general rule befoi-e the passing of the present enactment was that in deeds no estate in fee simple could be created without the word " heirs," and no estate in fee tail could be created without the words " heirs of the body," and similarlj' in case of | (/.) 44 & 45 V. c. 41 (Imp.\ s. 51. I ,' €ap. 100.] NO WORDS OF LIMITATION. 21 estates in tail male and tail female (i). The effect of ne'Tlect to use these words was well expressed in the foUow- incT extract : " If one grant land to J. S. to have and to hold to him in fee simple, or in fee tail, without saying [to him and his heirs, or to him and his heirs males, or the like], this is but an estate for life and no more. So if one m-ant land to J. S. to have and to hold to him and his seed, or to him and his issues generally, without more words, by this is made only an estate for life. But in the con- struction of a will the law is otherwise in most of these cases " ( j). But as to with: — " Even under wills made before 1838 (/,:) an estate in fee simple might have been created by any expressions, however informal, which denoted the inten- tion. Tims the inhex'itance in fee was held to pass by a devise to A. in fee simple, to A. forever, or to him and his assigns forever" (I). II. No ivords of limitation: — Sub-section Sis an ex- pansion of section 63 of the Imperial Act (m), the text of which is as follows : — 63. (1) " Every conveyance shall by virtue of this Act be effectual to pass all the estate, right, title, interest, claim and demand which the conveying parties respectively have in, to or on the property conveyed, or expressed, or intended so to be, or which they respectively have power to convey in, to, or on the same." The addition of the words " when no words of limita- tion are used," also the retention of the words "This sub- section applies only if and as far as a contrary intention does not appear, etc." {n), read in connection with the final (i) See Elphinstone on Deeds, at pp. 224, 231, and the exceptions there collected. U) Touch, at p. 106. (A) The dute of cominfif into force of 1 V. c. 26. H) Jarman oa Wills, 5th ed. at p. 1133. (»i) 44 & 45 V. c 41 (Imp.). (n) lb. s. 63 (2). t .'1 1 f rl I V i ,/ "• 22 REAL PROPERTY STATUTES. [R. S. 0. I": I V'vi'. words of the very similar section 30 of R. S. 0. 1887, c. 109 (o), make manifest the intention to have a uniform rule of construction in deeds and wills. What that rule is will appear from the following extract, which, though expressed in relation to wills only, is now equally applic- able to deeds. "The effect of the enactment (p), it will be observed, is not wholly to preclude . . . the question whether an estate in fee simple will pass without words of limitation, but mei-ely to reverse the former rule. Formerly, nothing more than an estate for life would pass by an indefinite devise unless a contrary intention could be gathered from the context. Now, an estate in fee will pass by such a devise, ' unless a contrary intention shall appear by the will.' The onm prohandi (so to speak) under the present law lies on those who contend for the restricted construction " (q). As to deeds, the former inile was the same as that expressed in division I. of the notes to this section. As to wills, R. S. O. 1887, c. 109, has the following section : 30. When any real estate ia devised to any person without any words of limitation, such devise shall, subject to The De- volution of EHates Act, be construed to pass the fee simple or other the whole estate or interest which the testator had power to dispose of by will, unless a contrary intention appears by the will." Old rule: — This enactment is taken from 1 V. c. 26 (Imp.), s. 28 ; before which Act the unsatisfactory state of the law may be learned from the following extract : "Noth- ing was better settled than that a devise of messuages, lands, tenements or hereditaments (not estate), without words of limitation, occuring in a will which was not (o) See below for text. (p) 1 V. c. 2G (Imp.) ; R. S. 0. 1887, c. 109, s. 30. (q) Jarman on Wills, 5th ed. at p. 1135. Cap. 100.] CONVEYANCES TO ONESELF. 23 subject to the statute, 1 V. c. 26, conferred on the devisee an estate for life only. A conviction that the rule was o-enerally subversive of the actual intention of testators, ahvavs induced the courts to lend a willinor ear whenever a plausible pretext for a departure from it could be sug- o-ested " (r). The rule of construction under said section 30 has already been given above. Siih-f>ectloii 4: — 1st July, 1886, is the date provided in 49 V. c. 20 (Ont.), for that enactment to take effect (s). Conveyance by a person to himself, etc. Imp. Act. 8. 50. 6. Freeliold land or chattels real may be conveyed by a person to himself jointly with another person, by the like infaiis by which the same might be conveyed by him to another person ; and may, in like manner, bo conveyed by a huyband to his wife, and by a wife to her husband, alone or jointly with another person. R. S. O. 1877, c. 9.5, s. 10 ; 49 V. c. 20, s. 6. Origin of iwesent section : — The first portion of this section is a fusion of two enactments. R. S. 0. 1877, c. 95, had the following section : " 10. Any person shall have power to assign personal property, now by law assignable, including chattels real, directly to himself and another person, or persons or corpo- rations, bj' the like means as he might assign the same to another («)." Such section related only to personalty, and the later enactment, 49 V. c. 20, s. 6, was intended to supplement the former by extending the principle to realty. The present section 5 is therefore made up of the later enactment with the words " chattels real " taken from the older section and substituted for the words "a thing in action." The law as to personalty in general is preserved in our statutes in R. S. O. 1887, c. 122, which has the following section : (r) Jarman on Wills, 5th ed. 1131. (s) 49 V. c. 20 (Ont.), s. 2. (0 29 V. c. 28 (Can.), 8. 19; 22 & 23 V. c. 35 (Imp.), s. 21. m n \ W» A\ I ,!!•: 3", 24 iJff^L PROPERTY STATUTES. [R. S. 0. " 8. Any proi)erty, real or personal, may be conveyed or assigned by a person to himself jointly with another iwrson, by the like means by which it might be conveyed or assigned by him to another person; .nd may in like manner be conveyed or assigned by a husband to his wife, and by a wife to her husband alone or jointly with another person, R. S. 0. 1877, c. 95, s. 10; 49 V. C.20, s. 6." Jointly with another : — It seems that tlie first part of this section 5 is intended to apply only to a conveyance in joint tenancy, as in the ordinary case of the appointment of a new trustee. " If land conveyed by A. is to be held in common by himself and B., the proper course is either for A. to convey an undivided share to B., or to convey the entirety to B. to the use of himself and B. as tenants in common. The latter form would be adopted only to make covenants run with the land " ( u). Nature of joint tenancy : —Oi both realty and person- alty there may be a joint tenancy ; and, strictly speaking, such joint tenancies should be distinguished by four unities, — (1) unity oi iwssession, (2) unity of interest, (8) unity of title, and (4), unity of the tiTne of the commencement of such title (v). Now for A., being already the owner, (as trustee or otherwise) to convey to liimself and B., as joint tenants, would be inconsistent with these unities. Accordingly it was formerly necessary that a third party should be introduced, through whom the title should pass to A. and B. as joint tenants. The introduction of such a third party tends, of course, to render a conveyance more cumbrous and expensive ; and the object of tlie present section is to simplify the conveyance in such cases. Exceptions as to the necessity for unity of time already existed in the case of conveyances by virtue of the Statute of Uses, and in the case of estates created by will {w). {«) Wolstenholme and Turner, 5th ed. p. 102. (v) VVilliams on Personal Property, 10th ed. 341' 7th ed. 123. (lo) Williams on Real Property at p. 12(5. on Real Property, I f ■Cap. 100.] CONVEYANCES, HUSBAND TO WIFE. 25 Convej/ances between hiishand and wife: — The second portion of the present section 5 has been rendered necessary by modern legislation conferring on married women the power to hold separate property. The ancient rights of the husband in the personal property of the wife are thus expressed in Williams on Personal Property (x) : " In the first place then personal property of the ancient kind, namely chattels personal or moveable goods, belong- in''>), increase or reduction of rent ; Crocker v. Sowden. 33 U. C. R. 307 (1S74), surrender by wife during husband's imprisonment ; Kyle v. Stocks, 31 U. C. R. 47 (1871), new lease of portion of premises without apportionment as to remainder ; Carpenter v. Hull, Iti U. C. C. P. 90 (18(50), giving up key ; Coffin V. Danard, 24 U. C. R. 2(57 (1805), right of possession in lessor ; Regina (.( ni Adanison v. Boyd, 4 P. R. 204 (1808), fresh lease to new partnershi)) ; Caverliill v. Orvis, 12'U. C. C. P. 392 (18IJ2), third parties ; Elsworth v. Brice, 18 V. C. R. 441 (1859), absence of lessee ; Horton v. Mjicconichy, 9 U. C. C. P. IHG (1859), substitution of demised lands for others; Grant v. Lvnch, v. C. C. P. 178, 14 U. C. R. 148 (1857), new agreement not executed ; Al'Leod V. Darch, 7 U. C. C. P. 35 (1857), receipts for rent ; O'Dougherty v. Fretwell, 11 r. C. R. 05 (1853), bond not a deed as recpiired by statute ; Lewis v. Brooks, 8 U. C. R. 570 (1852), new lease from transferree of reversion ; />"(' '/. Burr v. Deuison, 8 U. C. R. 185 (1851), giving up and cancelling lease by tenant ; Russell v Graham, U. C. R. 497 (1850), surrender by third party ; McNeil V. Train, 5 U. C. R. 91 (1848), surrender bv operation of law should be pleaded ; Av (I. McPherson v. Hunter, 4 U. C. R. 449 (1818), fraudulent conveyance by kssor to lessee ; Strathy v. Crooks, 1 U. C. R. 44 (1844), surrender by opera- tion, etc., is a matter of law ; Strathy v. Crooks, O. S. 587 (1843), new demise ; Bue d. McDonell v. McDougiiU, 3 O. 3. 177 (1834), surrender to Crown. ^ FT 0S REAL PROPERTY STATUTES. [R. S. 0. tain " {q). There are, however, certain narrower uses of the first two of these phrases which serve to mark valu- able distinctions. Thus contingent estates are said to be capable, and executory estates are said to be incapable, of being limited under the rules of the common law (/•), a distinction that di'aws with it a certain liability of contin- gent estates to destruction ; from which liability executory estates are in e. "Future interest" may include both " contingent " and " executory " ; e. r/., in the phrase " estate or interest in reversion or remainder or other future estate or interest "(s), the words italior/^ I comprehend all executory devises (/). A future ii^ttn'f a' d not be contingent. Possibilitic ■ : - lid word " possihility" according to Challis, has been obscured by its confused usages. He distinguishes tiiree ^nds ; possibilities coupled with an interest; (ii) bare po.ssibiiitics; aii) absolutely bare possi- bilities. Of the first kind, that mentioned in our present section, he says: — " (i) Possibilities coupled with an interest; as contingent remainders and executory interests; which, as soon as the person in whom they will vest, if they do vest, is ascertained, are both descendible and devise- able "(a). Of all the four phrases mentioned in the present section^ the connecting thread is the " contingency " of the interest : "an interest \b contingent, where a right of enjoyment is to accrue on an event which is dubious and uncertain, e.(j., if A. convey land to C. for life, and if D. die in the lifetime of C, then, after C.'s decease, to B. and his heirs, the interest limited to B. i» contingent " (v). (q) Fearne on Contingent Remainders, 10th ed. p. 1. (r) See Challis on Real Property, 57. (») R. S. 0. 1887, c. Ill, 8. 5 (11) ; 3 & 4 Wm. IV. c. 27, s. 3. (0 Per Tindal, C. J., James v. Salter, 3 Bing. N. C. 554. (u) Challis on Real Property, 58. (v) Fearne, p. 2. '" - '3 • Cap. 100.] ASSIGNMENT OF POSSIBILITIES. 39 Former modes of assigning such interests : — To assign such interests as we are here dealing with, there were, before the passing of the present section (w), several pos- sible modes. A ijossihility coupled ivith an interest had been held devisable, i.e., transmissible by will (x). A con- tiuLjent i-eraainder could be alienated by " fine," i.e., a fictitious action at law. The fine " operated in the first instance during the contingency by estoppel ; and on the happening of the contingent event, the estate which then became vested fed the estoppel " (y). Such interests might also be released to the owner of the land, but not to a stranger {z). " Executory interests, in persons in being and ascer- tained, are assignable in equity, for valuable consideration ; . . . when it said that executory interests are assignable in equity, it is meant that an assignment of them is treated by a Court of Equity as a contract or agreement of which it will decree a specific performance " (a). Formerly not assignable inter viros: — But at common laiv these interests being only jiossihilitie.'^ were not assign- able inter vivos (b). The present section is meant to remedy this state of the law by rendering them assignable by deed. " Whether the object of the gift or limitation of such interest or possibility be or be not ascertained": — It was perhaps true that in equity this was already the case. Thus where there was a devise to such of the children of A. as should be living at his death, and A. had issue, B., (w) It is taken from 8 & 9 V. c. 106 (Imp.), s. ; first enacted in Canada. 14, 15 V. c. 7, 8. 5. (.() Jones V. Roe, 3 T. R. 88 (1789). (y) Burton on Real Property, 8th ed. p. 22, note (a). (z) Fearne, 10th ed. by Josiah Smith, Vol. II. s. 751. As to alienation of interest of a yearly tenant, see Allcock v. MoOrehouse, 9 Q. B. D. 371 (1882). (a) lb. 8. 749. (6) Challia, p. 58. f I f > 1, ■: ^1 i*». 40 REAL PROPERTY STATUTES. [R. S. 0. who becoming a bankrupt, got his certificate of discharge, after which A. died ; in that case the contingent interest of B. (who, of course, could not be ascertained as the object of the gift or limitation during A.'s lifetime) was held liable to the assignment in bankruptcy (c). The present section leaves no doubt about tie matter. "Also a right of entry ": — This enactment does not relate to a right to re-possess or re-enter for a condition broken, but only to an original right where there has ])een a disseisin or where the party has a right to recover lands, and has right of entry and nothing but that remains id). In other words, not a right of entry for a forfeiture, e.g.. on account of failure to pay rent or to repair or to biiikl according to covenant, but a right of entry in the natiw of an estate or interest, that is where a person by lapse of time has lost everything except his right of entry (e). Both at common law and by the statute 32 Hen. VIII., c. 9, a conveyance of such an estate or interest was void ; " and the reason hereof is for avoiding of maintenance, suppres- sion of right and stirring up of suits " (/). "Disposed of": — These words also occur in an Act passed in the same year in which this section was first enacted, i.e., The Land Clauses Consolidation Act, 1845 (((), and have there been held to signify a transfer to some other person {h). The words are commonly in use without having any very definite conveyancing value, e.g., in the («) Higden v. Williamson, 3 P. Wms. 132 (1731) ; but see Pope v. Whit- combe, 3 Russ. 124 (182G). ((/) Hunt V. Bishop, 8 Exch. at p. 680 (1S53). ((■) Hunt V. Remnant, i) Exch. at p. (540 (18r)4) ; Bennett v. Herring 3 C. B. N. S. 3G9 {1857) ; Jenkins v. Jones, 9 Q. B. D. l.U (1S82). (/) See Doe d. Williams v. Evans, 1 C. B. 717 (1845). See, as to onuso proof. Kennedy v. Lyell, 15 Q. B. D. 491 (1885). (j7) 8 and 9 V. c. 118 (Imp.) ss. 127, 128. (h) Astley v. Manchester, 2 De G. &. J. 453 (1858). See also, Re Tliack- vray & Young, L. R. 40 Ch. D. 34 (1S89). ^^ Cap. 1«*«0 GRANT AND EXCHANGE. ca.se cited above of Jones v. Roe {i), Lord Kenyon, C.J., uses the same words, "dispose of " and "disposition." "But no such disposition, etc.": — Cf. R. S. 0. 1887, c. 108, s. 8. " Nothing in this Act contained shall enable any person to dispose of any lands entailed, in respect to any expectant interest which he may have as issue inherit- able to any estate tail therein." 10. Neither of tho words "grant" or "exchange," in any (ItHcl, shall create any warranty or right of re-entry, or covenant by implication except in cases where, by any Act in force in Ontiirio, it is declarfd that the word " grant" shall have such tlftct. R. S. 0. 1877, 0. 98, s. 6. No implied warranty, etc., to be created by the word " grant " or "ex- change." c. 106 (Imp.), This section is taken from 8 & 9 V s. 4 (j). Covenant: — "A covenant is the agreement or con.sent of two or more by deed in writing, sealed and delivered, whereby either or one of the parties doth promise to the other, that something is done already, or shall be done afterwards " [k). WariHinti/ : — " A warranty is a covenant real, annexed to lauds and tenements, whereby a man and his ]\eirs are bound to warrant the same" (/), "and either upon voucher, or by judgment in a writ of ivarrantia charted to yield other lands and tenements to the value of those that shall be evicted by a former title" (m). The following notes occur in the Sth ed. of the Touchstone : "In the practice of modern conveyancers, warranties are but rarely, if ever, made use of : — Covenants may be said to have entirely superseded these ; for a covenant, when the covenantor covenants for his heirs, binding the (j) 3 T. R. 88 (1789). ij) First enacted in Can. 12 V. c. 71, s. G. (A) Touch. 100. {I) lb. 181. (w) Co. Litt. 3(55(8. I vm I Tl p 1 ' 42 liKAL PROPERTY STATUTES. [R. S. 0. heirs where they have assets by descent, and also binding tlio covenantor's personal representatives, and consequently rendering his personal assets liable in case of a breach of the covenant (and they are not liable in the case of a war- ranty), and being more easily adapted to the circumstances of many cases which arise than a warranty ; a covenant may be said to have most of the advantages of a warranty and also some advantages which a warranty does not pos- sess. In consequence, therefore, of the disuse of warranties, the learning on the subject is of much less importance than formerly" (/i). What implied hy grant: — "It was one time a prevail- ing opinion that the word grant in any conveyance created a warranty and in consequence of such opinion trustees were advised not to convey by the word grant, but it now seems to be agreed that this word, when used in a con- veyance of an estate of inheritance, does not imply a warranty" (o). " But it is said the word grant of itself imports a cov- enant ; which it does at law ; but that is where there is no particular cov'enant " {p). Dart says of the present section : — " The object of this enactment appears to have been to prevent any general warranty of title from arising by the use of the words "give" and "grant"; and it probably would not be held to interfere with the rule of law that any words of assur- ance operate as a covenant for quiet enjoyment of the interest expressed to be assured as against the future acts of the party making the assurance " {q). Dart, in the same passage, also explains the exceptions referred to in the present section : — " Under the 6 Anne, (n) Touch. 181. (o) lb. 183. (p) Clarke v. Samson, 1 Ves. (Sen.), 100 (1748). iq) Citing Seddon v. Senate, 13 Eaat, 74 (1810), as to the word "assigns." Cap. 100.] EXCHANOE. 43 c. 35, ss. 30 & 34, and 8 Geo. II. c. 6, s. 35 the words ' grant, l)y mutual conveyances, adapted to pass the land without entry. Such conveyances are valid with- out regard to the re([uisites of a common law exchange ; for property of any given kind may be bartered for property of the same or any other kind, and the bar- gain may be completed by adopting the modes of assur- ance suitable to the transfer of the respective properties, Unless the relative condition of the parties, the subject- matter, and the form of assurance, are in accordance with an exchange strictly at the common law, the incidents of such an exchange cannot belong to the transaction (x). In every case, the better course appears to be, to proceed upon the basis of a reciprocal sale — the condition being land instead of money — and for each party to investigate the other's title, as upon a purchase, in order that mutual conveyances may be executed in the ordinary form, with the usual qualified covenants for title. Each title will thus be independent of the other ; whereas, a vendor, deriving his {v) Draper, C. J., in Leach v. Dennis, 24 U. C. R. 131 (18G4). (w) 5th ed. Vol. II. p. 10. (x) Citing Bartram v. Whichcote, C Sim. 80 (1833). >*i i U ■ *» ^^'M Call. 100] WHAT VOMPIUSKD IN CONVEYANCES. 45 title iirnler n proper cxchaiKjc made within sixty years, i» ol)li""o(l to show the title to both estates ; unless, indeed, he can prove that the fee of the lands exchan;^ed away has since been aliened, for the implied right of re-entry does not pass to an alienee." 11. The prectHlinffthrct' sections of this Act shall not extend Precpiling tliree sec- tions not to extend to deeds, etc., execnted be- fore Iht Jan. 1850. to any deed, act or thinf,' executed or done, or to any estate, riffht or interest created before the Ist day of January, IH.50, but tliey shidl extend to and have operation and effect on and from that day. K. S. 0. 1877, c. 98, s. 7. ht day of January, 18.10 :— 12 V. c. 71 (Can.), took effect from and after 31st December, 1849. See s. 14 thereof. 12. (1) Every conveyance of land, »inles8 an exception is Conveyance specially nuidu therein, shall be held and construed to include to include all houses, out-houses, edifices, barns, stables, yards, gardens, '^.^.^ and the iiri'liards, commons, trees, wcMids, nnderwoods, mounds, fences, rev(rsio!i, I '"fs, ditches, ways, waters, water-courses, lights, liberties, •'""l '^H *''** 'eges, easements, profits, commodities, emoluments, here- '■'**'*^''' *-''''^' nts and aiipurtenances whatsoever, to the lands therein comprised, belonging or in anywise a])pertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof ; and if the same purports to Cdiivpy an estate ni fee, also the reversion or reversions, remainder and remainders, yearly and other rents, issues and [iiiitits of the same lands, and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, inoijcrty, profit, possession, claim and demand whatsoever, of the grantor, in, to, out of, or upon the same lands, and every part and parcel thereof, with their and every of their appur- tiiiances, (2) Except as to conveyances under the former Acts relating to short forms of conveyances, this section applies only to con- veyances made after the 1st day of July, 188G. R. S. O. 1877, c. 102, s. 4 ; 4'J V. c. 20, s. 5. The 1st sub-section is the same as section 4 in the Act respecting Short Forms of Conveyances (y). {y) R. S. O. 1887, c. 105, s. 4 : also, c. 107, s. 4. See note.9 to s. 1 (C) ixprit. I i I'. I i \ i; ; ill ^ » .'■\ \> ■\V- 4G EEAL PROPERTY STATUTES. [R. S. 0. As " conveyance " includes lease this section likewise covers the same ground as the 3rd section of the Act respecting Short Forms of Leases (z). The 1st day of July, 1886, is the date of taking effect of 49 V. c. 20 (3) (a). The 6th section of the Imperial Act (h). from which said Act has been taken, has elaborate clauses as to what a conveyance includes ; but there being already in use in this country the clause in the Short Forms Act, our Leijislature has retained the same. Houses: — See Messuages, under s. 1 (1), supra (c). Be- sides its conveyancing meaning, house is often used in the sense of " building." See Stroud's Judicial Dictionary, 257 ; Anderson's Dictionarv of Law, 515, and cases cited there. For moaning of " building," see Regina v. Labadie(d); Carr V. Fire Assurance Association (e) ; Mitchell v. City of London Fire Insurance Co. {/). For "dwelling," see Gouin- lock v. Manufacturers and Merchants Mutual Insuranc, Co. (g). " Mill " does not include the fee in the soil under the millstream and dam: Green v. Green (h). "Outhouses" : — "Buildings belonging to and adjoining dwelling houses (t). " Edifices ": — See " Building," su;?/'a. " Barns, st(d)les" : — The decisions on the usage of the word " barn " have more to do with the criminal law than I.) !■ , (.:) R. S. O. 1887, c. lOlJ, s. 3. ((() S(«tion 2. {h) 44 & 45 V. c. 41. (<•) .S',',' also St. Thomas Hospital v. Chariiifr Cross Ry., 1 J. & H. Wi (1801! ; Touch. !»() ; Stroud's Judicial Dictionary, 2.j7. ' (,l) 32 IT. C. R. 42;» (1S72) ; case of arson. (f) 14 O. R. 487 (18S7). (/) 12 O. R. 700(188'.). (.7) 43 U. C. R. .'j(>3(1878). (h) 2 l\ E. I. 8 (1874). (() Wharton's Law Lexicon, 7tli I'd. 583 Cap. 100.] COyVEYAXCES. 47 Avitli that of real property: "And if the barn, stable or warehouse, be parcel of the mansion-house and within the same common fence, though not under the same roof, or ci)iiti<'-uous, a burglary may be committed therein ; for the cai)ital house protects and privileges all its branches and appurtenances, if within the curtilage or house-stall " {j). Yards: — Under this word, where the parcels were described with reference to coloured parts of a plan, a yard, delineated but not coloured in the plan, was held to pass (/r). "Gardens": — A distinction was made in Rex. v. Hodges (b, between a "garden" and a " nursery ground," which the jury took advantage of to acquit a prisoner. " Orchards" :— See "messuages" under s. 1 (1), supra. " Commons " : — " The word ' commons ' means as often lands where rights of common are exercised, as conmion unenclosed open land when there are no commonable rights" (m). " Trees : — Some fine distinctions have been drawn as to the meaning of 'trees.' Thus, in Bidlen v. Denning (n), where Littledale, J., said: — 'The word trees, generally speaking, means wood applicable to buildings, and does not include orchard trees " ; it was held that " timber trees and other trees " did not include fruit-trees. " And in cases where the trees only do pass, and where the grant is of all a man's trees, there shall pass no more of the soil, but so much as shall serve for the nutriment of (./) Blackstone, 4 Com. 225 ; see also State v. Smith. 28 Iowa, fjOH (1870), and Hiitckiii v. ^State, 20 Ohio St. 420 (1875), as to what the " barn " may bu IM'd to stol'i'. (A) Willis V. Watiny, 51 L. J. Ch. 181 (1881). Ci Moo & Mid. 341 (1820). See further A'.r. p. Hammond, 9 Jiir. 358 (iStt) ; I'urser v. Worthing, 18 Q. B. D. 818 (1S8H). (m) .\tty.-Gen. v. Hanmer, 27 L. J. Ch. 841 (1857). For the various sorts of ciimiiiuns, si.c Co. Lict. 122rt. ('t) 5 B. & C. 842 (182G). 1^Mi ■1 ■ ) 1 , ' '■ w< \, 48 REAL PROPERTY STATUTES. [R. S. 0. the trees, and the owner of the soil shall have the grass growing thereupon also " (o). Woods : — " A man seised of divers acres of wood, grants to another omnes boscos suos, all his woods ; not only the woods growing upon the land pass, but the land itself " (p). " In like manner, by an exception in a lease of the woods and underwoods growing or being on the property demised, the soil itself on which they grow is excepted : Ives Case, 5 Rep. 11a ; Hide v. Whistler, Pop. 146 ; Whistler v. Paston, Cro. Jac. 487. On the other hand, by an exception of 'trees,' Liford's Case, 11 Rep. 4>6b, or 'saleable under- woods ' now growing on the premises ; Pincombe v. Thomas, Cro. Jac. 524, the soil itself is not excepted. See Glover V. Andrew, 1 And. 7 " (q). Underwoods : — " Generally speaking, that term is ap- plied to a species of wood which grows expeditiously, and sends up many shoots from one stool, the root remaining perfect from which the shoots are cut, and producing new shoots and so yielding a succession of profits " (r). Fence : — " A line of obstacle, composed of any material that will present the desired obstruction " (.s). mtch€'^:—Sce R. S. O. 1887, c. 220. Ways : — " A fourth species of incorporeal hereditaments is that ol ivcys ; or the right of going over another man's ground " (t). (o) Touch. . »r further, Stanley v. White, 14 East, 332 (1811). (p) Co. Litt. 4fi. Sec Doc d. Kingslake v. Reviss, 7 C. B. 45G (184'J). (q) El|ihiiistone on Deeds 613. (r) ]5ayley, J., in Kinpr v. Ferrybridge, 1 B. & G. 383(1823). (») An. (t) 2 Bl. Com. ;ir>. For scope of word, ncr Barkshire v. Gnibb, 18 Cii. D^ 016 (18S1) ; Brown v. Alabaster, 37 Ch. D. 4!tO(1887), and cases there cited. *t also " Way," in Stroud'd Judicial Dictionary 875. I '^♦v Cap. 1W-] CONVEYANCES. 49 Wnters, icater-courses : — If a man grant aquarti suain the soil shall not pass but the piscary within the water pa.sseth therewith" {ii). liijlfs: — "On the other hand, when a house is sold ' with all its li{,fhts ' a statement in the particulars that adjoining land, belonging to the vendor, is building land, does not authorize the vendor, or a purchaser from him to build upon the adjoining land, so as to obstruct such lights " {v). Liberties: — "With all liberties": see Heddy v. Wheel- house {iv)\ Fenryn v. Best (x). Privileges; easements: — 'As was said by Lord Wens- leydale in the case of Rowhothatn v. Wilson (y), "it is one of the cases put by Sheppard's Touchstone in illustration of the maxim, ' quando aliquid conceditar, conceditur eilarii et id sine quo res ipsa non esse p>utiiit' that by a grant of mines, is granted the power to dig them." This power to dig would of course be futile unless it involved the right of bringing to the surface. A necessary incident to a grant cannot, therefore, in my opinion, be styled a " privilege, servitude or easement " ' (s). Profits: — Profits a prendre, a right to the products or proceeds of land (((). (u) Co. Litt. 4h. See further, Sandprson v. Berwick-upon-Tweed, 13 il ]',. I). 547 (1K83); Wardle v. Brocklelnirst, 29 L. .1. Q. B. 145 (1850). Ahu WiMidfall on Landlord and Tenant, 13th ed. c. 18, 8.4; alMO R. S. 0. 1^87, c. 220. (r! Dart. V. & V. 5tli ed. 122, fith ed. l.'^fl. Citing Swansborough v. Coven- try, I'.l Uiiig. 305 ; Booth v. Alcock, L. K. S Cli. 1. (.r) L. R. 3 Ex. 1). 202 (1878). (,'/) H H. L. C. 3tiO. (;) Lord Ciiehnsford, in Ramsay v. Blair, L. R. 1 App. Ca. 703 (1870); fi«r cases on tlie tiiniilar section in the Inijierial Conveyanciitfr .\ct, 1881, see I'liniiin^'liani Hanking Co. v. Ross, ."8 Ch. ]). 307 (1888)," cases where nu ex]>ec- tatieii of uasenient eontiimins: ; Beddington v. Atlee, 35 Ch. 1). 331 (1887), iliui^'er (if expre.sN mention of "appurtenances." (") .Anderson 'is Dictirmary of Law. For distinction between easements and in-otits, fue f^oddard's Law of Easements, Am. ed. 7 ; tnile on Easements, ■Itli ed. 1, 7 ; Hall on J't-ojUs a I'nndrc, H.It.I'.S. — 4 '1 } ; '~w '^'f? ¥7^: 50 REAL PROPERTY STATUTES. [R. S. 0. Commodities, Emoluments : — " Commodities, Emolu- ments, Profits and Advantages ... all of which four words are of one sense and nature, implying things gain- ful " (6). "Appurtenances," " used or enjoyed ivith," what pasm under these ivords? — In McNish v. Miinroe{c), a disputed strip of land, claimed as part of lot 25 had been enclosed by a fence and used as a part of lot 26. A deed was made to the defendant of lot 26, " together with all and singular the houses, out-houses, etc.," " easements . . . here- ditaments and appurtenances whatsoever to the said parcel or tract of land and premises belonging, or in anjnvise appertaining, or therewith demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof." Patterson, J., said : " The proposition is, that this part of lot 25 passed as included in the description ' lot 26,' or as hereditament demised, held, used, occupied, and enjoyed with lot 26, or taken or knovvn as part or parcel thereof. It could not pass as appurtenant or appendant to lot 2(), both being corporeal hei'editaments, and this is not con- tended. It was not used, occupied or enjoyed with lot 20 in the sense in which a garden or a stable is used, occupied or enjoyed with a mansion house. It was not taken or known as part of 26, for any mistake on that score had been corrected by the survey of 1854. If the land had been conveyed by a description such as ' my farm, called lot 26,' it is not impossible that a question might have been raised as to its being included in the farm improperly called lot 26 ((/). " The effect of words such as ' used or enjoyed with,' as even in the case of easements, passing rights which would not have passed as appurtenances, is noticed in the most (6) London v. Southwell, Hob. 304. (c) 26 U. C. C. P. 290 (lS7f.). (d) Citing Lister v. Pickford, 34 Beav. at p. 580 (1864). ' 1 Cap. 100.] Al'l'URTEXAyCKS. 51 recent case which I have seen, namely, Kay v. Oxley, L. R. 10 Q. B. 360. But I have seen no authority which, in my opinion, goes the length necessary to maintain the defen- dant's proposition. That proposition, if law, would seem to lend to results that would surprise owners of land in this country." The same judge, in Harris v. Smith (e), held that a ri^'lit of way is not such a continuous easement as to pass by implication of law with a grant of the land ; only a Avay of necessity will so ^^ass. And that a way used by the owner of two tenements over one for access to the other, is not in law appurtenant to the dominant tenement, so as to pass with a grant of it under the word " appurtenances," unless the deed shows an intention to extend the meaning ot that word, and to embrace the way ; oi- the grant is of rtll ways " used and enjoyed " ; or words are used shewing an intention to include existing ways, in which case a delined (existing way will pass. Appurtenances : — On the question whether " land can lie appurtenant to land," see Lister v. Picl'ford (/); Cath- hert v, Robinson (g); Jarman on Wills {h}. 13. Any coriwration aggregate in Ontario, capable tif taking C\)riKira- aiiil C()nve3'ing land, shall be deemed to have been and to be ^."1' "SP'*^" ciipabk' of taking and conveying land by deed of bargain and eunvevViV sale, in like manner aa any person in his natural cai)acity, sub- Iwrgain and ject nevertheless to any general limitati(ms or restrictions and '^'*1*^- 1(1 any sjiecial provisions as to holding or conveying real estate which may be applicable to such corjwration. K. 8. O. 1877, c. DS, 8. 8. This section is originally found in 4 Wm. IV. c. 1 (U C), s. 40. The words in the last line but one, " and to any special provisions," did not, however, occur in the original section, but are found in C S. U. C. c. DO, s. i:^. Ir) 40 U. C. R. ',','S (1877). Tliis case is a very useful one, from the number <'f authorities cited by all tlie judges taking part' in the pm.eedings. (/)34 Lieav. 57(i(]8(!4). (.'/) 51 L. J. Ch. L'3H (1881). (/() "nh eil. 7;!7. J1 1 'li 'h 1 Hwl f ^is K Wi i 1 m ■ r 1 W'' ♦ "11 WvA- m K| % ,i»: 52 REAL PROPERTY STATUTES, [R. S. 0. The nature of the mischief at which this present enactment was aimed will appear from the following passage : — " It was once thought that a coi-poration could not stand seised to a use ; and hence, as a deed of bargain and sale merely passes the use, and the bargainor must stand seised of the land for a moment, that the statute of uses, if we, may be allowed the expression, may have time to execute the use, it was thought that a corporation could not make a deed of bargain and sale. Lord Chief Baron Oomyn, indeed, says, that a corporation may bargain and and sell, for they may give a use, though they cannot stand seised to one ; and founds himself upon a case, where it appeared that the prioress of Hallowell conveyed certain lands by the words dedi et concessi pro certa peciinuB sumnia to Lord Chancellor Audley and his heirs. It was objected, that a bargain and sale by a corporation was not good, for it could not be seised to another's use. But the court rejected the objection as dangerous ; for that such were the conveyances of the greater part of the possessions of monasteries. And it was said, that although such a corporation could not take an estate to another's use, yet they might charge their possessions with a use to another. The only principle, however, upon which this case can be supported, that lands may be charged with an use, as with a rent or common, was rejected as an absurdity in Chudleigh's case ; and ]\Ir. Cruise, in his learned and valu- able Digest, informs us that in England, ' it is now generally admitted that a corporation cannot stand seised to an use,' with a view to prove that it was incapable of making a deed of bargain and sale " (c). Eiirohnent 14. No deed of barpain and sale of land in Ontario, executed or reeristra- subsennently to the r>tli day of March, 18;i4, shall require enrol- tion not . , , , f , V r a necessary ment or registration to supply the place of enrolment, tor the to validity. mere purpose of rendering such bartrain and sale a valid and ((') Angell & Ames on Corporations, 4th ed. s. 220. ^^V ■Crtp.lOO.] BAROAIX AXf) SALE. 53 effectual conveyance for passing the land thereby intended to be of deeds of har^rained and sold, but this shall not affect any question of gaK**'" °^^ Iiriority under The Iter/istry Ad, or any Act heretofore m force This shall rt-iK'CtinK' tlie registration of instrumenta relating to real estate, not affect R. S. O. 1877. 0. 08. s. 0. Pr^-jtf^, c. 114. This section appears to have been suggested by the Inipcrial Act, 3 & 4 VVm. IV. c. 74, s. 10. " No common recovery already suffered, or hereafter to Ije sutlered, shall be invalid in conseciuence of the neglect to enrol in due time a bargain and sale purporting to make the tenant to the writ of entry or other writ for sutiering sucli rccoveiy, provided such recovery would have been valid if the bargain and sale purporting to make the tenant to the writ had been duly enrolled." Tlie present section itself was first enacted in Upper Canada on the Gth March, 1834, in the following form : — " That after the passing of this Act, a deed of bargain and sale of land in this province shall not be heW to rt'(|uire enrolment or to re(iuire registration to supply the place of enrolment for the mere purpose of rendering such Imrgain and sale a valid and effectual conveyance for pass- ing the land thereby intended to be bargained and sold ; Provided always, nevertheless, that the necessity of regis- tering such deed of bargain and sale in the register of the county in which the land is situated, in order to guard against a subseijuent purchaser of the same lands obtaining title by prior registry, shall continue as before the passing of this Act " ( j). The proviso has been unprofitably condensed in the later revisions, but the meaning is still evidently the same. Formerly, in Upper Canada, a bargain and sale required two enrolments or registrations. U) 4 Wm. IV. c. 1, s. 47. ■' liii m i P \ 54 REAL PROPERTY STATUTES. [R. S. 0. It I I. In the registry office for deeds, in order to preserve its priority ; the necessity for which registry is untouched by the present enactment. II. Under]^the Statute of Enrohnents (Jc). That statute required a bargain and sale (in order to be valid) to " be made by writing, indented, sealed and enrolled in one of the King's courts of record at Westminster . . . the same enrolment to be had and made within six months next after the date of the same writing indicated." In 1797 we find an enactment of our province (/), with the following instructive preamble : — " Whereas in certain cases lands have been intended to have been conveyed by deed of bargain and sale, and whereas such deeds of bargain and sale not having been enrolled in a court of record are not valid in law ; in order thei'efore to prevent the injury that might hence arise to His Majesty's subjects in this province, and for the better regulating the conveyance of land in future, be it enacted, etc." The substance of the enactment was that whenever an}' lands have been c." shall be sold by bargain and sale, and such deed has been registered in the proper registry office, the same is thereby declared a good and valid conveyance iu law. The third stage was the above Act of 4 Wm. IV., removing the necessity for enrolment altogether. 4 Wni. IV c. 1, 8. 47, was held to be retrospective, so as to make deeds of bargain and sale, executed before the Act, valid without registration. The same case held that a deed poll was sufficient, an indenture being no longer essential {m). 18. (1 iinmediatf Court, the I'.irty to t\ III! aiiniiiil I'll .'i (Iftirt invested ii si iiate therefrom (2) Kvei-y "therwise exjjre (3) On an a "I the first insta (■1) On an a; tlie first instanc( (k) 27 Hen. VIII. c. IG, (I) 37 Geo. Ill, c. 8. (hi) Rogers v. Barnum, .5 O. S. 2.')2 (1830) ; nfe Doe d. Spafford v. Brown 3 O. S. 92 (ls:W). In New Brunswick, a deed of bargain and sale not enrolW according to 27 Henry VIII. c. l(i, or 2i; (ieo. III. e. 3, does not pass any estate; l)ued. Hanington v. McFadden, Bert. 153 (1830). \u. "• ■*.[ Cfti'. wK I'AYMI'.XT OF IXrl'MniiAycES. 55 16. (1) Wlicre land Hubject to any incumbrance, whether iiiiim-iliiiti'ly payable i)r not, is sold by tho Ci>urt or out of ( ciiirt, the Ciiurt may, if it thinks fit, on the ai)plicati'jn of any iiiirtv to till- sail', direct cpr allow payment into Court— in cast' of Kti annual sum charged on the land, or of a capital «um charged Mil a detcnninable interest in the land— of such amount an, when invested in securities approved by the Court, the Court con- >i(lers will be sutiicient by means of the dividends thereof to keep down or otherwise provide for that charge ; and— in any ntlur case of capital money charged on the land— of the amount siirticient to meet the incumbrance and any interest due thereon ; but in either case tliere shall also be paiil int(j Court such additional amount as the Court considers will be sufficient to meet the coutinf,'ency of further costs, expenses, and interest, and any other contingency except depreciation of investments, not e.-iceeding one-tenth part of tlie original amount to be paid in, unless the Court for special reasons thinks fit to require a larger additional amount. (2) Thereu])on the Court may, if it thinks fit, and either after or without .any notice to the incumbrancer, as the Court thinks tit, declare the land to be freed from the incumbrance ; and make any order for conveyance, or vesting order, proper for g-iving effect to the sale ; and give directions for the retention ami investment of the money in Court. (o) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discliarge for the same, and generally may give directions respecting' the application or distribution of i.he capital or in- ccnie thereof. 4li('(t. Kiifiiiiiiijf CUM-llilllts, Viiriiition of cove- iiiitits. ('■) Wli'Mf in :i c'lnvcy.'itiw it is ex|irc.sHe(I tliivt l>y (lircctiini ,f II MTsmi r'"-'<'il todirt'i't iim luMit-Kcial uwncr iiiiotlifr i»T- (.'oncoiivcys tlit-ii tln! pfisoii K'V'i'K tlif clin-i-tidii, whctlicr Ik- •niivpvx and is expreHned to convey as hcmficial owner or not, ,1im11 )«■ il''eiiif(l to convey, and to lie expressed to convey m bui.li.ial.'wnertliesiihject-iiiatter so ci>nveyed liy his direction; luid lunvutiiiiit on liis part shall lie implied accordint'ly. (;$) U'here in a conveyance, a person conveyinfj is not ex- Mrf>i-r(l to convey as luneticial owner, or as settlor, or as trustee, as iii(irtk''ip'''i f'l" "'^ personal representative of a deceaseil w-rsMii, or as coiiiiiiitten of a lunatic so found by in(iiii»itioii, dr \m'- 1 an order of the Court, or liy direction of ii per-^on as hene- ficial owner, no covenant on tiie part of the person conveyinp shall he hy virtue of this section implied in tht conveyance. (4i The henefit of a covenant, implied as aforesaid, shall lie aniiixeil iiiid incident to and shall po with the estate or interext (,f tlie implied covenantee, and shall lie capable of beinp enforced hv every person in whom that estate or interest is for the whole i>r any jiart thereof from time to time vested. ("i) A covenant ini)ilied as aforesaid, may lie varied or ex- tended hy deed, and as so varied or extended, shall, as far as inav lie, operate in tiie like manner, and with all the like incidents, effects and consetpiences, as if such variations or extensions were directed in this section tfi be implied. 4'.( V. c. :'<», ». 13 (2-0). Benrficidl ovDcr: — In McEiven v. Bonltrm (o), the ex- pres.sion " owner in fee " was held to mean the benericial owner. The covenants included by this section are express and Dut implied covenants (/)). Wliere on a sale of freeholds, sub-leases were made by a tenant of the vendor who had surrendered his lease pre- viously to the sale, these were held not breaches of the j covenants by beneticial owner (. 39i» (1809). See further McKenzie v. H.amilton. H. E. C. 1 "li. i< \ i flfect of words "beneticial owner" in a lidl of sale see under •y, s. 5, infrn. ),\ L. N. A n*. R. Co. V. Boulton, 02 L. T. 398 (18891. (7) David Sabin, (1>92), W. X. 11.5. As to whether taxes for local im- jITinMiicnts are lireach of covenant against incumbrances, see Kj:),' v, Blavney^ ll'l" ... I). 107 (1J>88), and under R. S. O. c. 10."i, schedule D., infnt. ■m M f ;i; \K m. if ; 1 il |: KiJP ■I \ § 1 'i p ■^1 J 1; ■ if '\ \ J f \:^ i " I I "l::!- €0 REAL PROPERTY STATUTES. [R.S.O, Powers. Mode cif 18. A deed hereafter executed in the presence of, and attests executing by t'vo or more witnesses in the manner in which deed* are powers. or.iinarily executed and attested (r), shall, so far as respects tie execution and attestation thereof, be a valid execution of a jiower of apix)intnient by deed or by any instrument in writing, m estamentary, notwithstanding tliat it is especially required tliss a deed or instrument in writing, made in exercise of such \m\fi shall bH executed or attested with some additional or other form of execution or attestation or solemnity ; but this provision shal! not operate to defeat any direction in the instrument creatine the [)ower, that tlie consent of any (larticular person siiall fce necessary to a valid execution, or that any act shall be i)erforni(.-< & My. \M (l.s.>L>). ('/) 45 k 4»i V. c. a; I, ». (J. U Cap. 100.] pon'/;ns. 68 iiifr that of disclaimer (e). This later enactment, which lia.s not been adopted by our legislature, is said to have the eti'ect of putting the disclaimer of a power on the same footing as the disclaimer of an estate (/). Sugden says ; — " Devisees, although only trustees, may disclaim the devise to them ; but if a man devise that J. S., a mere stranger, or his heirs, shall sell the land, this beinc a mere power, to which the equity of the statute of wills extends, the release of J. S. shall not hinder the sale, nor can he disclaim ; but a man having a power, with an interest given to him, may, it is conceived, divest himself of it by disclaimer " (g). Where the donee of the power may disclaim, the following principles laid down by Lewin will apply : I. If a power be given to several trustees and one of them disclaims, the power may be exercised by the con- tinuing trustees or trustee. II. If the power be not given to the trustees by name but to the " trustees " or " executors "; it is clear d fortiori that if one disclaim the acting trustees or executors may exercise the power (h). The present section is not intended to cure defects in the title given by the donees other than the defect of their reletvse Iteing formerly invalid : " For this reason I think it clear that the petitioners can not make a good title to the land in question. I should add that the position of the vendoi-s is not aided by s. 19 of c. 100, R. S. 0. to which I was referred, and which only gives to the donee of a power the right to release or to contract not to exercise it. Whatever might V, (0 .S'f*" He Eyre, suiira ; iind Re Fisher and llaslett, 13 L. R. Ir. 546. (/) WoUtenht.liiie & Turner, flth ed. p. 135. (;/) Siijjden on powiTs, (ith vd. \>, 49. CO I.i'win c.n Trusts, 8th I'd. (JOO, G07 and cases there cited. h 1. V*: I 'f i' \ urn III ; G4 REAL PROPERTY STATUTES. [R.S.O. be the effect of the vendors either releasing or contracting not to exercise the power which they possess, it would certainly not confer upon themselves the right to give the purchaser a good title " (i). Sftle under jKiwernotto iH^ avoided by reason of jnistaken payment to tenant for life Imp. Act 22-23 V. c. 35, 8. 13. 20. Where, under a power of sale, a bona fide sale is made of an estate, with the timber thereon, or any other articles attached thereto, and the tenant for life, or any other party to the trans- action, is, by mistake, allowed to receive for his own benefit, a portion of the {)urchase money f)r value of the timber or cither articles, it shall be lawful for the High Court, upon an action brought or upon application made in a summary way, as tlie case may require or i)ennit, to declare, that upon payment liy the purchaser, or the claimant under him, of the full value of the timber and articles at the time of sale, with such interest thereon as the Court directs, and the settlement of the said principal moneys and interest under the direction of the Court, ujwn sin'ii parties as in the opinion of the Court are entitled tliereto, the sale ought to be established ; and uixjn payment and settlement being made accordingly, the Court may declare thu the sale is valid, and thereujjcn the legal estate shall vest, and go in like manner as if the jwwer had been duly executed, and the costs of the application, as between solicitor ant client, shall l)e paid ))y the purchaser or the claimant under him: R. S. O. 1877, c. !»8, s. 11. Of this section Sugden says : — " In a case where a man was tenant for life without impeachment of waste of a settled estate, with a power of sale in trustees to which his consent was necessary, the estate with the standing timber was sold, and the trustees received the value set upon the estate and the tenant for life received the value of the timber ; all parties supposing; that as he might have cut and sold the timber he was entitled to the value of it although standing, yet the sale was set aside, and the decree was affirmed in the House of | Lords (j). The mistake having been discovered, the tenant for life, before the litigation, invested the like amount in the funds in the names of the trustees upon the trusts of I (i) Street, J., in Re Collard & Duckworth, 10 O. R. at p. 737 (18811). U) Cockerell v. Cholmehy, 1 Russ & Uyl 418 (1830); 1 Clark & Fin. GO. Cap. 100.] AUCTIONS OF ESTATES. ■ I;' the settlement, but this eirnnmof^ vary the case. TlnVs requira ^nTd: ^7, '^^' "«* *^ in the new Act" {k). ^ '""^"^^^ ^« contained Auctions op Estates. ^n. In co„«trui„g the next succeeding three sections of thin J. '.Auctioneer" Shan „ean any pe.on«e„i„,,,p„,,, ,J::i^::^tt To.^s^T.ci^^t^ *° ^-^ «„ the reserved price, or to a right of theTeU "\ t'""^^ ^"^^^^^ *" - be cieeu.ed and taken to be without r '^'^' "^« '^^' ^^alj c. f»«, «. 13. Without reserve. R. s. Q. 1877, 23. Upon any sale of land bv ai,Ptir^„ vl •"■t be lawful for a seller ICrn"^?";*'"'^^"'^' '*«hall '^r fcr the auctioneer to take Z '^ *° •^'^' ^' ^"''h sale -Her or fron. a puffer R. s' OiSH^'oT' '''''"^ '^"" *''^ Construc- tion of particular Words. "Auction- eer. " 'Puff, er. When sale shall be deemed without reserve. '" b'cl at .such auction, in such" '"" "^ ^''^ ""'^ P"ffer Seller not to bid at unreserved sales. At reserved sales the seller mav bid. ^ «le8 by ,„,ctio„ where a S ^ ? •'•''' '" "" ™"'"ty of »f WJJinif on belj of fhe In"' """■ "'"'-S'' "o 4' ^•M«Hent that an end I y S"";™; "r''""^' »'"' '' ^ UK.P.8 6 ' I 1 'i ' Mill U in fi !|' ;|'i( 66 REAL PROPERTY STATUTES. [R.S.O. n I, \. ','• If hi II: both the seller and purchaser that such sale should be so conducted as to be binding on both parties." Said enactment represents the Imperial Act, 30 & 31 V. c. 48 ; of which, section 4 has the first portion of the above preamble down to " was reserved " ; after which it continues : " the Courts of Law holding that all such sales are absolutely illegal, and the Courts of Equity, under some circumstances, giving effect to them, but even in Courts of Equity the rule is unsettled (m) : and whereas it is expedient that an end should be put to such conflicting and unsettled opinions ; be it therefore enacted, that from and after the passing of this Act, whenever a sale by auction of land would be invalid at law by reason of tiie employment of a puffer, the same shall be deemed to be invalid in equity as well as at law." The latter portion of the preamble to our Act of 1868 is the preamble to section 5 of the Imperial Act. The enacting portion of section 5 differs from our Act in ren- dering it incumbent on the vendor to state whether the sale is with or without reserve. Section 6 of the Imperial Act is represented by the present section 24. The Imperial Act has a 7th section preventing the opening of biddings except on special grounds (71), which section we have not adopted in On- tario. Reserved hid and reserved right to bid : — Our section 22 leaves it doubtful whether the Legislature intended to make a distinction between a reserved price or bidding, and a reserved right to bid. Lord Romilly interpreted the wording of the Imperial Act as implying such a dis- tinction (o) Strictly speaking, it would seem that, in view (m) e.g. unsettled by Mortimer v. Bell, L. R. 1 Gh. 10 (1865). (n) See Guest v, Smythe, L, R. 5 Ch. .551 (1870) ; Delves r. Delves, L R. 20 Eq. 77 (1876) ; Re Bartlett, 16 Ch. D. 561 (1880) ; cf. our C. R. 106. (o) Gilltat V. GUliat, L. R. 9 Eq. 60 (1869). !fc Tap. 100.] SELLINO BELOW RESERVED BID. 67 of his interpretation, our common clause in the particulars or conditions of sale, that " the property will be sold subject to a reserved bid," will not also confer the privileges gained \)\' reserving the right for the seller to bid as mentioned in section 24. So that, if it is intended to have both a reserved liid and one puffer, it will be necessary to say in the par- ticuiai-s that the property will be sold subject to a reserved bid and to a right of the seller to bid (/>). Aiidioneer selling below reserved bid: — Where an auctioneer received an article with instructions not to sell it under a certain price, held that if he sell it for a less sum he will be liable to make good the loss {q). Effect of employment of pilfers : — The fact of puffers being employed by a vendor at a public sale of a number of lots, although none were proved to have bid on the par- ticular lots which the vendee agreed to purchase, was held to be a good ground of answer to a bill by the vendor for specific performance ; and a Court of Equity in such case, instead of requiring defendant to prove that some of the organized puffers had bid on the particular lots, might well call upon the plaintiff to prove that none had bid or been instructed to bid thereon (r). 20. Nothing in the next preceding four sections contained I nhall be taken to authorize any seller to become the purchaser I at the Bale. R. S. 0. 1877, c. 98, s. 16. Seller not authorized to purchase. This section is simply intended to guard against the [possible misapprehension that persons hitherto debarred Ifrom bidding on account of a fiduciary or quasi-fiduciary Irelation to the subject of sale, might take advantage of the I Act to bid under the above section 24. (/') .s«c Dimmock v, Hallett, L. R. 2 Ch. 21 (1866) ; case where auctioneer |»tated that the sale was without reserve, but that the parties were at liberty |tu bid. (q) Mason v. Chamberlain, 1 Thorn. 2nd ed. 7 (1834). (r) Jennings v. Hart, 1 R. & C. 15 (1875). ill : 68 REAL PROPERTY STATUTES. [R. S. 0. m Application 26. The next preueding five sections shall not apply to anv of ti8. 21-25. Hale which took place before the 4th day of March, 1868 R. S. O. 1877, c. 08, s. 17. The Act 31 V. c. 28 (Oni), was assented to 4th March, 1868. Rent-Chargks. 27. The release from a rent-charge of part of the heredita ments charged therewith shall not extinguish the whole rent- charge, but shall ojierate only to bar the right to recover anv part of the rent-charge out of the hereditaments released, with- out prejudice, nevertheless, to the rights of all persons interentitl in the hereditaments remaining unreleased, and not concurrinsf in or confirming the release. R. S. O. 1877, c. 95, s. 1. Release of part of land charged not to Iw an extinguish- ment of the charge on tticrest, etc. Imp. Act 22-23 V. c. 35, s. 10. Definition of rent-charge : — " A rent-char^j^e is where land is chai'ged with a rent by deed or will with power tu distrain for the same, but the owner of the lent has no reversion in the land ; as where a person conveys to another, land in fee simple, reserving a certain rent payable there- out, with a clause of distress that if the rent be in arrear or behind for a specified number of days, it shall be lawful to distrain for the same. In such case the land is liable to the distress, not of common right, but by virtue of the clause in the deed ; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it " (n). Law as to release of rent -charge: — The law on thij subject, as far as it concerns the matter of the present section (t), is discussed in Booth v. Smith (a), in which tlie rent-charge was an annuity ; from which case we may take the following observations : — According to the old law (before the passing of the present section), the release of part of the land charged with an annuity was a release of the whole land. Various | (») Woodfall, Landlord and Tenant, 13th ed. 376. (0 Our section is taken from 22-23 V. 35 (Imp.), s. 10. (") L. R. 14 Q.'.B.;D..318 (1884). I';; Li., in '. '31 •'■ ■ ,0*' Cap. 100.] LA W AS TO RELEASE OF RENTCHARUE. 69 ciimlirou.s methods were adopted to got over this difficulty, one <»f which methods was to have a re-grant of the Hiiuuity (rent-charge). To get rid of the inconvenience of thi.s state oF artiiir.s the present section was pa.ssed, enabling piut of the land to be released without extinguishing the whole rent-charge. "" The first part of the section relates to the case where the wholp of the land which is subject to the rent-chargo is miller one ownership. In this ca.se the relea.se of a portion of the laud leaves the unreleased portion sul)ject to the rent-charge. But subject to Itow ini(4:lt of the rent- cliargo ! To the ivhole of it. The second part of the section contains a reservation of the rights of certain interested parties, and is diHicult of interpretation. It relates to the cases where the released and the unreleased portions belong to different persons. Firstly, if the owners of the unreleased portion concur in or contirin the release, the unreleased portion will bo sub- ject, as above, to the rent cliarge and to the whole of it, .secondly, if said owners do not concur or confirm, the Act is wit/ioiU prcjiulice to their rights. Now, one of the rights of the owners of the unreleased portion previously to the passing of the pre.sent section was that, l)y the release, the unreleased portion also was freed fi-om the charge. Is this right preserved ? No, the .section does not say the rights of the persons interested -shall be the same as they would have been if the Act had not been passed, but that they shall not be prejudiced ; and it means that such rights as they had which were not inconsi.Htent with the earlier part of the section shall be preserved. Another right of the owners of the unreleased portion I was the right to contribution from the owner of the released Iportion. Is it this right (involving circuity of action) that lis preserved ; Xo ; the right to contribution was because t ■III B ) H ui I' 'I m^ 'm 4w 1 •■;;! 4 ti - ■i ■'Mi, ' i ^ :il v rl 1 1 i 1 ^1 .:^ 1 \ ■• 70 REAL PROPERTY STATUTES. [R.S,o, the law meant that each part of the land should not l)ear more than its proportion of an annuity with which the land was charged. Therefore the owners of the unreleased portion ought n(jt to be liable for more than such propor- tion of the annuity as corresponded with their portion of the land. Before any part of the land was releaseil they were liable to pay the entire annuity, and if they dij so, they had a right to contribution against the owner of the other .part. It is that right one must look to in con- struing the present section, and we ought to so construe it as to say that the unreleased portion is liable but onhj fm- its proportion of the annxiity. But, if apportionment was meant, why does not the present section mention apportionment ? It was not thought desirable that the enactment should say, nor floes it say, that in all cases in which a part of the laiui is released the annuity shall be apportioned, because when the owner of a large estate subject to a rent-charge cuts up his land into pai'cels, it is not wished often to apportion the rent-charge, but) rather that the whole of it should \k thrown on some particular part (v). FlTLRK AND CONTINGENT UsES. 28. Whore, by any instrument, any hereditaments arc lim ited to uses, all uses tlierennder, whether expressed or iinpliHi by law, and whether immediate or future, or c(jntingeiit »r | executory, or to be declared imder any power therein contaiiwl. | shall take, effect when and as they arise by force (jf and by rvla- tion to the estate and seisin originally vested in the i)ersi;i | seised to the uses ; and the cimtinued existence in him or else- where of any seisin to uses or scintilla juris, shall not be deemfi | necessary for the supix)rt of, or to give effect to future or m\- tingent or executory uses ; nor shall any such seisin to uses i scintilla juris be deemed to be 8uspende. Act 23- 24 V. c. 38, s. 7. .■Mtll^ Cap. 100. SCINTILLA JURIS, 71 doctrine of scintilla juris (w) Of this, Wharton says :— " Scintilla juris et tituli (a apark of huv ami title). A pos- sibility of seisin, which is supposed to exist in the grantee to uses, when all actual seisin is taken from him by the operation of the statute (of uses), upon a limitation of st)rin"in<'- uses, and the creation of contingent ones. "To illustrate this, let us take a springing use ; a grant t(i A. ami his heirs to the use of B. and his heirs, until C. jKrfnnu an act, and then to the use of C. and his heirs. Htir the statute executes the use in B., which [use], being co-extensive with A.'s seisin, leaves no actual seisin in A. When, however, C. performs the act, B.'s use ceases, and (!'•< use s[»rini>s up, and he enjoys the fee-simple ; upon which the ((Uestion arises, out of what .seisin is C.'s use served i It is .said to be served out of A.'s original seisin, f(ir, iipon the cesser of B.'s use, it is contended that the oriifiuivl seisin reverted to A. for the purpo.se of serving C.'s usi- and is a possibility of .seisin or scintilla juris" (x). The doctrine of scintilla juris, or suspended seisin, was f;niced by many picturesijue expressions, l)ut seems always to liavf been doubtful law ; for instance, Sugden devotes a .section of his book on Powers to the demolition of the doctrine (_y). Contingent Remainders. 29. Every contingent remainder existing on the 2ncl day of Certain con- March, 1877, or created .since that day or hereafter, shall be, tin(jent ro- aiul e\ery contingent remainder, which existed at any time „ott(>l)ede- ln'tween tile .JOth day of May, 1849, and the 2nd day of August, feated by 18,"il, .siiiill be deemed tt) have been capable of taking effect, forfeiture, notwithstanding tiie determination by forfeiture, surrender or "'""'"♦'"der or merifer, of any preceding estate of freehold. R. S. O. 1877, precedincr c. 95, s. 3. estate. C'o7itinffcnt remahuhrs: — "It is not only necessary that a vested legal freehold estate should precede a legal (w) Pro|)erty Statutes, 2nd e>'6''f'f<'^^t e.sf(ife to a tnfire rUjIit : — /.^. a ri^jht of action is not sufficient to support a contin;^ent rLMiifiiiider. This cau.se of distinction depends on the old law by which a right of entry was inalienable : sn- sec- tion 9 above. (i. X((fnral expiration of precedent enUite /lendiiKj the continfieiu'i/ : — This is still a po.ssible cause of destruction. The present section (h) has been supplemented by 40 & 41 v. c. 'M (Imp.), which we do not appear to liave con- sidered worth adoptinf opinion or re(|uires that such should he done, aecordinj,' as may, under all the circumstiuiocs of th(! case, 1m' most just, making compensation for the laii'l, if retained, as the Ctmrt may direct. U. H, O. 1877, c. 95, s. 4. Orifjin (inelief that the land was his own . . . This seems rather sharp legislation, but it is unfortunately too absolute in its terms, and it is directed against the only innocent man there is in the transacticn [i.e. the true owner], and he is without redress. He should be allowed, at any rate, if he elect, to abandon his land on (»/) 7&8 V. c. 7G(Inip.), H. 8. (f) 8&i» V. c. l(M;(Imp.), «. S. (/) 34 U. C. R. at I), aai), ct m/. (1874). I' ' > ^ii' 1 Cap. 100] IMPROVEMENT UNDER MISTAKE OF TITLE. 75 bein*; paid the value of it. There would be some equality in that. Such a statute must be carefully executed in all cases." Ill .S'//h7/< v. G'lhfton (g), it was considered that the belief must he a irasr^nable one; and doubt was raised as to the inaimor of tryinjif the right to a lien under the statute. Ill (/Connor v. Dunn (h) the action being ejectment, tlif party claiming the lien was held entitled to have his lit'ii ini|nired into and adjudicated upon in the action. The .'^jiiiie case raised a qutirc as to how the lien, if estaljlished, could he enforced ; suggesting that the method of enforce- ment would be an order to sell the land. Ill iSViV^^ V. (J/itiiwion (/), where a mortgagee, 17 years liefoie the bill for redemption, bought the ecpiity at ii Hhi'iitr.s .'"'ale, which sale was, on technical grounds, invalid, the court refused redemption, declining to apply the prin- ciple of compensation containeil in the above Act. An extract from the ju like this. I have already stated shortly that liiiiMiiigs costing many thousand dollars have been put up ujion tilt! [ireiiiises in (piestion by the purchasers from Cliapiuan and Abbott, and by others purchasing from them from time to time. There have been buildings, tires, re- liuiidings, alterations and impi'ovements in buildings, con- versions of buildings from one purpose to another, sales from one to another, converting fields and commons into .«. 124, one of which is reli.d ■on in (tt(iiiiii)'i'S())i V. linutliKj, 18 Gr. 510." But various tlicta of the ('ourt of Ajipeal in livdfii v. i^haw {m), tend considerably to abj-idge tht; scope (»r Ixith the old e([uity iloctriiie and the present statutoiy nilf as to compensation, as far as relates to the grounds fur (,;') (lUiiiiiH rsiiii V. ^luuin^f. IS (Jr. ;')!(» (1S71), eimiinfiitfil mi in licaty i. Shaw, 14 \. H. lit p. r.()7 (IH.^H); McLar.'ii v. KiiistT, 17 (ir. fjti7 (I'^O). (A) 11 O. K. .WH (ISW). (/) 0(ir prt'Mfiit Ncctidii. (w) 14 A. H. floo (IMHH). * 11 Cap. 100.1 LIMITATIONS ON RULE IN EQUITY. 77 ullowin*' compensation at all. The facts in that case make pcih.'ips an extreme instance: — F. and W. wi e executors; F. (;.\c('iited a mortgaj^e to W. to secure a debt to the estate ; jiftcr W.'s decease, F. (in his capacity of executor) executed a discluvrge to tiie defendants, to whom he conveyed the estate inortijaged. The disehar{.fe was hekl invalid ; but, were the defendant's entitled to compensation under the Act I The scope of the presetit section : — The stiitr.te had in view " the case of improvements on land wholly belongin<;- to .inotlH'f an't *• which the improvinfi^ occupanl/ turns out to have iici claim or title." The owner of an estate, subject to M niort;,'at;e, does not come within the statute. In other words, the statute n|ipHt's to lands not which ore the defen- dants own, but whicli ^^under mistake of title) he believes to he his own (n). » LiiiiitdtiiniK ">' rule in equity : — The old e(|uity rule is it'stricted, in t " iv^ of England (1) to the case of the action for mesne profits where the party has been some- times allowed to recoup himself by setting oft' the value of the inipiovcments ; and (2) to "cases where the legal title has lu'cn in the person making the improvements, and the ct|uital)le title in another, who is obliged to resoi't to a Court of Kiiuity for relief, and where the court then acts u|ion the principle that the party who comes to the court to sock c(|uity, nmst, himself, be willing to do what is ei|uitaltle " {v). "As against the owner having the le(i((l title, the Legis- lature has said that the person who has made the improve- ments in good faith, shall, to the extent to which the property has been enhanced in value have a lien ; having tliut lien, ';e has the means of enforcing it in the courts of the comitry, lait apart from the legislation, I have been 1 (ii) lb. at p. vm. 4l 1. k :r' 78 REAL PROPERTY STATUTES. [R. S. 0. ' I unable to convince myself that, except in the case of fraud, or that the aid of a Court of Equity is required, the courts have any power against the real owner to enforce a claim for compensation for improvements ; but, however that may by, such a claim cannot be enforced as against a mortgagee who has registered his mortgage " (o). Extent of rule in equity as recocfnized in Manitoba courts: — There are several interesting decisions of the Manitoba courts, bearing on the rule of equity as to com- pensation for improvements under mistake of title. Thus, in McKenney v, Spence (p), Wood, C.J., following Gum- merson v. Banting (18 Gr. 515), says: "I thus interpose to stay the plaintiff in liis action at law until he arranges the eciuities, which have arisen, perhaps, in some measure by his delay in asserting his rights, and pays for the enhanced value of the property by the permanent improve- ment made upon it bona Jide ; but I cannot altogether say under a reasonable mistake of title ... It seems the very highest equity that he who shall bona fide, in mistake of title, make permanent improvements on land, should, when the true owner takes away the land from him, be compensated to the extent that his improvements have enhanced the permanent value of the land ; and in tiiis view I am fortified not only by the reason of the thini,', and a sense of natural justice, but also by the highest authority." In Confederation Life Assn. v. Moore (q), the plaintiffs loaned the widow of a testator a sum for the purpose of erecting buildings on the lands devised to her. Afterwards they discovered that certain legacies were a charge on those lands, and attempted to claim a lien for improvements under mistake of title. Taylor, C.J., said : — " No doubt the courts have gone very far in allowing liens for improve- (o) Jb. at p. 610. {p) Manitoba Rep. Temp. Wood, 11, 26. I'm §H:ff^Vi' Ca 100.] RULES FOR ESTIMATING COMPENSATION. 79 iiicnts made under a iristuke of title, but was there any such tliinii- here ? The widow, the morti^aoor, owns the land and the plaintiffs advanced her money to improve her estate, which she spent in doing so. It is true her estate was encumbered with a charj^e of which they had notice, but which they chose to disre) ; tlie cleariiijf of land for farming inir|HiHcK is a |it'riiian<'iit iiniirovi iiii'Ut. A» t(i iiiiprovenients by purchuKur at tax sale, gee Cnuipton v. Poii*-, 1 I'. E. I. 181 (1801). Cai'. 100. ] R ULES FoR ESTIMA TING COM PENS A TION. 81 approximation by tuking a mean of all their estimates.' A like method of arriving at the average was adopted by Lord Lvndhurst, and is worked out by him in Pott v. Vad'is, Youn^^e, R. at pp. 555 and 559 " (jt). II. 7o eatimnte improved value: — The value of the Iftiul in its improved state may be estimated, (1) by what it can be sold for ; (a forced s interest is allowed on the expenditure for improvements; 10 P. R. 180. "None of the cases referred to justifies this broad ci in- clusion. . . . While the general authorities differ in some details, owing perhaps to special circumstances, there is yet a general accord upon the chief principles which regulate the manner of accounting under this head of equity. . . . Apart from the statute, when lastini: improvements were the subject of compensation, whether in favour of a mortgagee or a part owner, or a stranger the rule was to make him account for profits of the whole property improved. It is difficult to refer to express deci- sions because the matter has been very much taken for granted as in Carroll v. Robertson, 15 Gr. at p. 177, where it is assumed that if improvements are allowed to a pereoD i he should be charged with the enhanced rental owing to them. But Marshall v. Cave, 3 L. J. Ch. O. S. 57, more | («) See McCarthy v. Arbuckle, 31 U. C. C. P. 405 (1881). (y) 11 O. R. beginning at p. 527. ■ '.'#.1 C»p. 100] RULEU FOR ESTIMATINa COMPENSATION. 83 fully noted by 3Ir. Coventry in his edition of Poivell on Morhftt'icx, Vol. II. p. 957a, is a clear ca.se as to a niort- j^rajri-e, and Gihhoths v. Snupe, De G. J. & S. G22, 62G, (>27 and (i;}.S, is an equally clear case as to a part owner. See also Atl(ii'iici/-(T''iiPi'al V. lialliol (Udlei/c, Oxford, J) Mod. at I). 412 and Pmd v. Johnson, 12 Gr. at p. 482. " The next point to be ob.served is, that when lasting iiiiprovonR'nts were not allowed to the person in pcjssession lie was not charged with any increase of rent attributable tliereto. This is so laid down by Mowat, V.C., in Ctirroll V. Rohertmn, 15 Gr. 178 {z), and it is also the subject of a late decision in the English Court of appeal: livKjht v. f'<( (Muiisie V. Lindsay). ' :i .1 ■■/ i.! •if '11 ■■mv % : .i ^i 84 Jth'AL PHOVKllTY HTATUTLS. [R.S..). it-! mentH help to produce tliu rent, ami if iticreased rent is given on one side the interest of the money nhouM \k received on the other. ... In many cases, and perhaps in the present, it will he found that there is no suljstantis! dirterence between the interest on tlie outlay for iiiiprovi.- ments and the increased occupation rent arising therefium, and in such cji.sea it will be a convenient working niloty set ott" one against the other. ... In view of the ifnai expense and uncertainty arising from the inv(!stigatioii ot these details of past transactions, of which no leconi i> kept, it would be a merciful interposition on thi; piutuf the legislature to cut the knot by declaring that tli? increased rental should be set off, as of courae, against tli' interest of the money expended on improvements, unlissa special case is made to justify further in(|uiry " {n). Compensation to imrcliascr ie a defendant purchased at a tax sale (afterwards set ftsiik for irregularities), he was held entitled to componsatimi under the present section for improvements, in addition to the compensation allowed by the Assessment Act (A). Com pe nidation for improrcmeiits darinff ru'i, in found, in coiist'(|Ui'nc<' of niiMkilfiil Nurvoy, to liavti iiiiiipivi'd on landH not liix own, tti<< •lud(;i< licforo whom thi* «?ti'in in trit'aiil the amount of hiicIi damages or has offered to release the land to the defendant, provided that defendant, Ixffore thu fuiirtli day of the enmiinK sittinRM of the IIIkIi ('o\irt payH, »»r iiiiiiiTs, to the plaintitf the value of the land so acsensed. K. S. (). 1.S77, c. rd, M. 21». 32. Ill all cases in which thon the defendant shall Iw (■ntitled to the costs of the defence : provide f[? ^#^ p.< i/x ^ <, 86 BEAL PROPERTY STATUTES. [R. S. 0. Origin and object of these sections: — These are older sections than the preceding one (s. 30). Section 31 actually dates from 1818 (d). Section 32 came in in 1839 (e). This legislation was explained by Chief Justice Robin- son as follows : " It has often happened that the township line has not been run on one uniform course through all the conces- sions, though it must have been intended to have so run, and in other cases the township line may have varied, not merely in parts, but wholly from the course marked in the diagram, from which the patents were framed. But, for the sake of makJuo- the lots in each concession ranw uniformly, the le, Idaturc thought it expedient to take the actual course of the exterior side line of the township, as marked upon the gn •r'* at the end of each concession, for the standard, arid i 'wide that the side lines of all the lots in the same c(/ne^:3sion shall correspond with that, whether the township line, as laid out on the ground in the original survey, was run on the proper course or not. " Yet it would seem obvious that whenever these new- principles of suivey could not be carried into effect without disturbing the occupation of parties who had taken posses- sion agreeably to the terms of their patent, before this statute was passed, it would not be just to allow such possession to be interfered with without compensating them for their improvements. " There is much ground, I think, for holding that the Legislature intended only to protect parties who have settled according to original surveys, made before the statute was passed, which, when tested by the principles laid down by the statute do not prove to be in conformity with them. (d) 59 Geo. III. c. 14 (U. C), s. 12 ; ste Beaty v. Shaw, 14 A. R. 602(1888). (e) 2V. c. 17(U. C), 88. 1&2. Cap. 100] COMPENSATION FOR IMPROVEMENTS. 87 " On the other hand, it may be contended that the words of the 12th clause are large enough to comprehend surveys made after the statute, as well as before, and surveys not merely erroneous, because they differ from the rules prescribed for the first time by the statute, but also surveys which would at any rate have been erroneous if tested merely by the original plan of survey. The Act is a remedial one founded on principles of equity, and parties therefore may claim tc have it liberally construed. " Without at present determining this point, which, I confess, I should desire to see made clearer by an amend- ment of the law, this much, at least, is in my opinion plain, that a defendant in ejectment cannot claim the benefit of the clause by reason of his having relied upon a survey made after the passing of the Act by any other than a licensed public surveyor {f). In a former case ((/), the Chief Justice had held that the Act of 59 Geo. III. applied equally to surveys made upon request of individuals and to those made by public authority [h) ; and to cases where the defendant's occupa- tion took place after the Act was passed. Both the Act of 59 Geo. III. and 2 V. were superseded by 12 V. c. 35 ; which Act was held to apply to a case of unskilful survey made before the enactment (i). " Shall assess " : — The words " shall assess," in the 6th line, first appear in the revision of 1877 : they were inserted in consistence with the Act, 32 V. c. 6 (Ont.), s. 18(1), which introduced a provision for the assessment of damages by a judge (j). (/) Doe d. Hare v. Potts, 5 IF. C. R. 494 (1849) ; cf. Swanston v. Strong, 21 U. C. R. 279 (18(51), where the C.J. expresses the same doubts. 0/) Doe d. Gallagher v. MoConnel, G O, S. 347 (1842). (h) Cf. Campbell v. Ferguson, below. (t) Campbell v. Ferguson, 4 U. C. C. P. 414 (1855), followed in Hutton v. Trotter, 16 U. C. C. P. 307 (186C), and Morton v. Lewis, IG U. C. C. P. 485 (18G()). See also Mozier v. Kegan, 13 U. C. C. P. 547 (18G3). (j) The present two sections 31 and 32 have been adojjted in Manitoba, as R, S. M. c. 48, 88. 34 and 35. ^ It1 i t ' 1 (■■ ;i|l!« 88 REAL PROPERTY STATUTES. [R. S. 0. W"\ What is evidence of hnjyrovenunts : — As to what is sufficient evidence of improvements to go to a jury, it has been held that a well and a rail fence constitute such (k). Measure of compensation : — It would seem that in estimating the amount of compensation, not the money actually expended on the improvements, i.e., the cost, but the value of the improvements at the time tlie land is taken from the defendant, is to be considered (I). Form of Notice: — As to the form of notice, see Camp- hell v. Fevffiison, cited above. Effect of improper instructions for survey : — It is to be borne in mind that the error must arise from unskilful survey, and that cases may arise where, frc^. the instruc- tions for the survey being wrong, and not through any lack of skill, an error occurs ; and such an error is not within the Act {in). Estoppel by acquiescence in boundary line : — When a boundary line has been run between adjoining proprietors of land by a survej'or mutually employed by them, and has been acted upon for a number of years and convey- ances made according to it, it is binding upon them though it was incorrectly run and deviated from the description in the deeds under which they held, and gave one of the parties a much greater quantity of land than he was entitled to (n). Where more than one survey had been made, and defendant filed a plan adopting one, a private survey, it was held he was not estopped by such filing from claiming land not included in the plan so filed (o). (A) Morton v. Lewis, IG U. C. C. P. 485 (188tj). (I) Plt»mb V. Steinhoff, 2 O. R. 614 (1882). Reversed on other grounds, 11 A. R. 788 ; 14 S. C. R. 739. (m) See Doe d. Moule v. Campbell, 8 IT. C. R. 19 (1851). (n) Doe d. Carr v. McCuUough, 1 Kerr, 460 (1842). Cf. Steeper v. Harding, 2J S. C. N. B. 143 (1884). (o) Johnston v. Clarke, 2 B. C. L. R. 56, 81 (18S4). '*^Sn.^it Cap. lOO.J PURCHASES OF REVEHs. filOAS. PuflCHASES OF ReversIo.VS. 33. In the succeeding two sectinn» *k "'" «..- »y kind o, c.n.^.'el.j'j;'^^ "^"-''«"" "Purch,.,.. sought to be opened or set asid*. nn .^ I"^'"«onal estate is ^«"//' "f «• fc". O. 18u, c. 9,5, s. 5. " "Pon the plaintiff, plaintiff in setting aside purchase of a reversion o. V 1 before 4th .i.i. °,:;r r:„r;:ir '''° "'" ^* '»»« «*. a„. p'V*"'- H. S. 0. ls-7, 0. IB, ,. 6. """' "" ""■ e^-nd of und»val„e. i l«ll«, ,,M affected liy O^-igin of time sections -—Tl,. ,. ""' ''hero attorney, and the price wTs 2 ff m™?'"" '""'''•'•^er's Join. Leach -ying^. A Co^? "0^ e! 1 "" ™'"^- «"' whether the parties really did '1 ^""•>' *'" '«l""-e •f it be found that the vender wn ,"""" ''""'' «»'l stances and that advantage was 111° 'i".',™'''' """"»- mil avoid the cont act.' °' """ distress, it 00 in Loiiipuale v T 1 / «ffinne.l „„ appeal (z) ^e'f t, **^' T^'""^ '* ««ems wa., »W for a priei ^.^XZlL^l^ J '" P°^^^=^»" '"., acted for vendor and pu'^-chi;: and H ' ""'' ""^ ^°''^"»- -Ivaneed in yea,«, a„J known to havJ™''''' '™^ » »» eccentric disposition. '"'"' '^'^^ »* a weak and '^P«ssessio„ by a pratd'iSr "■'"V^''''' "* P™'-% ^e.nff employed b/both par 't " ?' ""'"""^ ''"''"to ' »..e thin, was done in Z^rTT^r'''- ^''"^ ">" ™ « elderly woman in hnJbfT^ ^' ^''''^ ">^ "™dor a substantial tradesman, whl !„ '; ""^ "'^ P'"-'='"'»«'- tansaetion for both pa tir the -T '^'""'^ <"" "'» ann„,ty of 9s. a week for tl; ff! „7,7*™«°n being an case. Turner, L.J., distinguishe 1° " ™"'°'-- I" "'»t case ,n which the tranci/ '^'"•'■"«"» v. e«es< (a_., "■c ground that the the „r '™' ''"°"''' *° -"""d-on -^ the purchaser ^vised 117^"^' ''°'" "'^ «-'°°' »" ^--^r '-^ ^- .K-en by the vetlrtltT Z'). ''"^■^- W2GM.157„S8(,, '')S»4,D.F.Jl.T.4(,2 <"«H.L. 0.481(1861). - i I •h ^ 1 ■UK ii( ll li I Li 92 RliAL PROPERTY .STATUTES. [R. S.O. Summary of decisions: — "The result of the decisions is that, where a purchase is made from a poor and ignorant man at a considerable undervalue, the vendor having no independent advice, a Court of Equity will set aside the transaction. "This will be done even in the case of property in possession, and a fortiori if the interest be reversionary. " The circumstances of poverty and ignorance of the vendor, and absence of independent advice, throw upon the pur- chaser, when the transaction is impeached, the onus of proving, in Lord Selborne's words, that the purchase was ' fair, just and reasonable.' Solicitor acting for both sides : — Speaking of the par- ticular circumstances of this case, his Lordship continued : " I rejjret that I must come to the conclusion that, thouijh there was a semblance of bai'gaining by the solicitor in each case, he did not properly protect the vendors, but gave a great advantage to the purchasers who had been former clients, and for whom he was then acting. The circumstances illustrate the wisdom and necessity of the rule that a poor, ignorant man, selling an interest of this kind, should have independent advice, and that a purchase from him at an undervalue should be set aside, if he has not. The most experienced solicitor acting for both sides, if he allows a sale at an undervalue, can hardly have duU' performed his duty to the vendor. To act for both sides in such a case, and permit a sale at an undervalue, is a position in which no careful practitioner would alloAV himself to be placed. Delay or acquiescence: — As to the effect of delay or acquiescence, his Lordship continues : " In Gowland v. Be Faria (d), Sir William Grant, in a like case, said: ' There is, I believe, no case in which, during the continu- ance of the same situation, in which the party entered into (d) 17 Ves. 20, 25 (1810). Cap. 100.] UNFAIR DEALING. 98 the contract, acquiescence has ever gone for anything : it has always been presumed, that the same distress which pressed him to enter into the contract, prevented him from coming to set it aside ; that it is only when he is released from that distress that he can be expected to resist the performance of the contract.' The same rule was applied in Beynon v. Cook (e), whei'e the late Master of the Rolls, whose judgment was affirmed, says that the state of dis- tress is considered to continue till the reversion falls into possession. Unfair dealing: — As to the necessity of the words "unfair dealing," and as to what "fraud" will include, we may adopt his Lordship's words : " I am of opinion that no moral fraud has been proved in either case on the part of Lane or Whittet, but such transactions amount to unfair dealing, which equity considers a fraud, though I would rather the word were used for moral delinquencies. As to the costs in such cases : — " I am glad to find that no absolute rule has been laid down by the court in these cases. Sometimes where the only ground was undervalue, the plaintiff has been relieved on payment of costs, as in Twisleton v, Griffith (/). In some cases no costs are given, as in Bromley v. Smith (g); sometimes the costs are thrown upon the defendant as in Nevill v. Spelling (/<,)." Owing to there being no moral fraud, no costs were given in this case (i). O'Rorke v. Bolivghrook (j) is an earlier case, in which there is much interesting discussion of the law on this subject, and also considerable diversity of opinion among (e) L. R. 10 Ch. 380, 393 (1875). (/) 1 P. Wms. 310 (171G). (y) 26 Beav. C44, G76 (1859). (It) L. R. 15 Ch. D. 679, 705 (1880). (i) Fry V. Lane, siqmi. U) L. R. 2 App. Ca. 8U (1877). m i 1 1, I'-i r A r 94 liKAL PItOPEItTV STATUTES. [R. S. 0. the judges ; Lords Blackburn and Gordon being of opinion that there was no evidence of fraud ; while Lord Hatherly laid great stress on the fact of the reversioner having no independent adviser to protect him. To apply rule, property must be a reversion : — It seems that before applying any of the rules contained in the above decisions for the relief of the vendor of a reversion it is necessary that the property sold must be a reversion. This is the view taken by Lord Chelmsford : — " I confess myself unable to comprehend the nature of the alleged reversion. The real interest of the plaintiff was that of a life estate in possession in the moneys and funds, subject to rent-charges and mortgages, which nearly absorbed the whole of the interest. The death of Dame Charlotte {the owner of the charge) will not occasion the falling in of a reversion, but will merely I'elease the plaintiff's life estate from a charge of £1,000 per annum, and occasion an addi- tion to the surplus after satisfying the remaining charges to that extent. The case cannot, in my judgment, be treated as tlie purchase of a reversion, and the decree which proceeded upon that ground cannot be supported " (/;). Lord Selborne's judgment in Earl of Aylesford v. Morris (I), from which a quotation has been given above, compares the rule in equity with the legal rule and with the principle of the usury laws; and also analyses the the reasons on which the rule in ecjuity was supported. That the present enactment does not cover the whole ground of the equity rule as to the purchase of reversions from " expectant heirs " and as to their relief from " hard bargains " will appear from the decision of Jessel, M.R., in Beynon v. Cook (r/i). (k) L. R. 2 Ch. 546 (1867). (I) L. R. 8 Ch. 489 (1873). (m) L. R. 10 Ch. 392 (1875). Cap. 100] PURCHASER FOR VALUE WITHOUT NOTICE. 95 PrRCHASEB FOR VaLUK WITHOUT NOTICK, 36. Tt hIkiH in no case be necessary, in order to maintain the (Icfciicc of a ])urchaso .or value witliout notice, to prove payment (if till' inortKiW money or purchase money, or any part thereof. K. S. 0. 1H77, c. 95, 8, 9. Proof of payment of purchase money lui- necessary. Law prior to enactment of this section: — In Price v. Br(i(h/ (n), we had tho following decision of Spraggo, V.C. : " Bnidy's defence is that he was a purchaser for vahie, and that he had no notice. He does not, however, allege all that is necessaiy to constitute a good defence on this mound. He merely says that he had no notice of plaintiff's chiim at the time he made his purchase of the land from C. H. ; and that the consideration therefore paid to him \va3 actual and bona fide. He does not negative notice before he paid his purchase money, or before he received his conveyance. And further, he gives no evidence of the payment of any consideration money." This decision was rendered in 1869. The present section was originally enacted by 39 V. c. 7 (Ont.), s. 11 (assented to 10th February, 1876). The words " mortgage money or " were inserted by 40 V. c. 7 (Out), Sched. A. (115). Jiulicial criticism of this section: — Vice Chancellor Proudfoot somewhat severely criticised the present enact- ment in Peterhin v. Macfarlane (o) : " The rule in England is perfectly clear in favour of the owner, that the whole purchase money must be actually paid, not merely secured to be paid. In the American courts opinions are divided, some adopting the English rule, others protecting a pur- chaser to the extent of the money paid. " I fail to see, therefore, that the English rule, the one binding upon us, can fairly be characterized either as (n) 16 Gr. 376 (1869) ; see also Harvey v. Smith, 2 E. & A. 480 (1864), as to the necessity for the payment of the wlwle purchase money before notice. (") 4 A. R. 60 (1879) ; case affirmed, 9 A. R. 429 ; 13 S. C. R. 677. 1 1 n 96 REAL I'liUPEliTV STATUTES. [ii.s,a ine(|uitable or unjust. It has been acted on for centurits, and received the sanction of judges of the highest eiui- nence. "It is true that for the future this will, to a great extent, be merely a speculative (juestion, as the legislature has protected the purchaser, who may not have paid one cent of his money. R. S. O. c. 95, s. 9 (p). "It would obviously be improper in me to question the wisdom or the ecjuity of such an enactment, nor in this case do I need to do so, for the Act is not retrospective, and I am quite within the limits of the Act while sayinj; that for the past the rule was good ; for the future it will be bad." Punishment of vendor or mortgagor for fraudu- lent con- cealment of deeds, etc., or falsifying iiedigree. !nip. Acts 22-23 V. c. .'55, s. 24, and 23-24 V. c. 38, 8. 8. FiiAUDs ON Sales and Moutoages. 37. If any seller or mortgagor of land, or of any ciiattels, real or jjersonal, or chases in action conveyed or assigned tda purchaser or mortgagee, or the solicitor, or agent of any such seller or mortgagor, conceals any settlement, deed, will or otlicr instrument material to the title, or any incumbrance, from the purchaser or mortgagee, or falsifies any pedigree upon which the title depends or may depend, in order to induce him tj acceiJt the title offered or produced to him, with int(;nt in any of such cases to defraud, he shall, in addition to any criminal lia- bility he may thereby incur, bo liable to an action for daniapcs at the suit of the purchaser or mortgagee, or those claiming under the purchaser or mortgagee, for any loss sustained by them, or either or any of them, in consequence (jf the setth- ment, deed, will or other instrument or incumbrance so con- r oealed, or of any claim made by .any person under such pedigree, but whose right was concealed by the falsification of such pedigree ; and in estimating such damages where the estate is recovered from such purchaser or mortgagee, or from tliose claiming under the purchaser or mortgagee, regard shall be liad to any expenditure by them, or either or any of them, in im- provements on the land. R. S. 0. 1877, c. 98, s. 18. Object of this section : — The object of this enactment may properly be explained by its author, Lord St. Leonards (q). ip) i.e. the present section. {q) Sugden (Lord St. Leonards) Property Statutes, 2nd ed. 319. Cap. 100.] PENALTY Foil rjlAUD. "The Jast enactment (r) undo., fi,- u ~7 ^ great .safe.aiard to purchaseirand ' ^'' '''" '^''"'' ''^ protect the ^rreat body of resno. /""^'^.^'^^'^^-^ '"I'l will c. 3,s, ». ,s." ^ '" "''"' ""PPlKd l,y 23 & 24 V. In Smith V. Ihbinmn /i^ ;t of »al. that the aK,tr„„t „{' t'j iVZl,?" °' "'° ™"'''«"»-^ mclfntmo dated the SOtI, day of , ' ""' '^°">"">"eo with «„ no earlier or other title shoufd h "'""'' ^'"''^- ■""' "»t hy the purchaser. The foll„win7;r„' ? "'"''""■«' ""'« oose^-Counsel for the defendant" ^ y'^"^*' *™'" ""» ^chaeondition, knowin. of e „^ ^ "°'' '"«'" ""*» mcu„,bra„ee on the property „n i< T "^ "''•'"' P^or Wly ;it";™i:t 'T' ^^"^ '^» certain date?" ''^'""^^ ^e shewn before a Pe>?«;^y for such fraud— Th. n • • provides .w y^f««<.— rhe Criminal Code, 1892, «■• chose ,n action, or the «o]i Jtnr ^ ''""'• "^^^ "'' I'^rsunal cumbranc" "-rtgagor (and having been trvl!^' "^"l' °^ ""^ «"'='' ««"er or ?•• ^^^'-^'^y'"^ -y abstract of title by or o„ b eh^f "f ^.^ """«" 'I'^-and Z '"''^"'^«- J-'g'e before the eon^pletion" f . ! "' t''' '^"'chaser or mort- '!'« title, or any incumbrance fl „ «? u ' '"^'^^'^nt material to or falsifies any pedigree ""on Ku ^'-^'^^ser or mortgagee -tent to clefra„?a„T „Td" r tot ','' ''''' ^epends,'S ^"^agee to accept the title off f '' '""'" '^"'"''h'-ser or ^- «• C. c. 164, s. 91. "^ ""''"^ "' produced to him. (') 22 & 23 V. ^K /T^ » (*)I'-R.13Ch.D.l48(1879). ' fn 1. |l p ■' ;■; W.'l '5 - 98 REAL PROPER TY ST A TUTES. [R. S. 0. c. 100. SCHEDULE. Form of Conveyance by Beneficial Owner Under Section 17. day of , one thousand sight This Indenture made the hundred and Between (here insert names of parties and recitals, if any,) Witnesseth, that in consid sration of dollars, of lawful money of Canada, now paid by the said grantee to the said grantor (the receipt whereof is by him acknowledged,) he, the said grantor, as beneficial owner, doth convey unto the said grantee in fee simple (or otherwise as the case may be), all, etc., (parcels). In witness whereof, the said parties hereto have hereunto set their hands and seals. I.VSI'KCTION OP Al'i'LICATION ■". 4. IjII'LIKDCfiVE.V^ Keleahe 0|.' Eo I HOOK „E j,oj f''»«KCf.o.SlIii J'.XECITOli.s, ET( ■^'•"' .Vs.sig; i.Eii.vr, e«tat «. 12. JC^ISCHAKGE op MADE AT A\i ^- \Viiere the wl ^""«tr,u,l in the ,1 "•»'•>■ intention apf I'i "J'ropertv'i ''^- ''<•'•', and an interest. f-'J "ConveyancJ ^^"'•'ment, and „t| t. '^vi ^i«'^'%i R. S. 0. 1887, CHAPTER 102. An Act respecting Mortgages of Real Estate. m I.NTERPKETATION, S. 1. Ul)I.lliATIOX TO TRANSFER MORTGAGE, s. 2. IXHl'ECTION OK TITLE DEEDS, 8. 3. Al'l'MCATION OF INSt'RANCK MONEV, S. 4. ImI'LIKI) COVENANTS. SS. 5-7. Release ok EciUiTi ok redemption, •SH. 8-10. 1'HOOK of MORTGAGE ACCOUNT IN KDHECI.OSUKE PROCEEDINGS, S. 11. EXEC'ITOKS, ETC., OK MORTGAGEES MAY AS.SIGN, RELEASE, ETC., LE(!AI, ESTATE IN CERTAIN CASES, H. 12. DiHCHAKOK OF MORTGAGE MAY BK MADE AT ANY TIME, S. 13. Effect of advance on joint ac- count, 8. 14. Receipts of mortgagee ok sur- vivor of two or more mort- gagees TO HE effectual DIS- CHARGES, 8. 1.5. Right ok mortgacjee to distrain limited, 88. l(j-17. Power of sale and incide.ntal powers to be implied, .ss. 18-29 Taxation ok costs, ks. 28, 31. Restriction as to proceedings on mortgages, 8. 30. Payment in terms ok notice to be acceited, h. 31. Defence of purchase for value without notice, s. 32. TTER MAJESTY, by and with the advice and consent of ■*--■- the Legislative Assembly of the Province of Ontario onacts as follows : — 1. Where tho words following occur in this Act they shall be ciiiiNtriiwl in the manner hereinafter mentioned, unless a con- nary intention appears : — (1; "Property" includes real and personal property, and any debt, and any thing in action, and any other right or interest. (2) "Land" includes tenements and hereditaments, cor- iwreal or incorporeal; and houses and other buildings ; also an undivided share in land. (3) " Conveyance " includes assignment, apiwintment, lease, ffttieinent, and other a.ssurance and covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of Interpre- tation. 'Property." 'Land. " Convey- ance. " I ■•■\ ^. 100 MEAL PROPERTY STATUTES. [R.S.O. any property, or on any other dealing with or for any property ; "Convey." and " convey " has a meaning corresponding with that of con- veyance. " Mort- gage." " Mortgage money." "Mort- gagor." " Mort- gagee." "Incum- brance. " " Incum- brancer." (4) " Mortgage " includes any charge on any property for securing money, or money's worth; and "mortgage money" means money, or money's worth, secured by a mortgage ; and "mortgagor" includes any person from time to time deriving title under the original mortgagor, or entitled to redeem a mortgage, according to his estate, interest or right, in tht mortgaged property ; and " mortgagee " includes any jierson from time to time deriving title under the original mortgagee. (5) " Incumbrance " includes a mortgage in fee, or for a less estace, and a trust for securing money, and a lien, and a charge of a portion, annuity, or other capital or annual sum ; and " incumbrancer " has a meaning corresponding with that oi incumbrance, and includes every person entitled to the benefit of an incumbrance, or to require payment or discharge thereof, 49 V. c. 20, s. 3(1-5). The definitions here are taken from 44 & 45 V. c. 41 (Imp.), s. 2. In the Imperial Act, at the end of the definition of " mortgagee," the following further definition occurs :— " and mortgagee in possession is for the purposes of this Act, a mortgagee who, in right of the mortgage, has entered into and is in possession of the mortgr.ged pro- perty." Which our legislature has omitted. Cf. these definitions with those in R. S. 0. 1887, c. 100, s. 1 ; and see notes thereunder. I'he various meanings that have been assigned to " mortgage " and " incumbrance " may be found collected in Stroud's Judicial Dictionary at pp. 382, 482. PART I. Obligation on mortga- gee to trans- fer instead of re-con- 2 (1). Where a mortgagor is entitled to redeem, he shall, ty virtue of this Act, have power to require the mortgagee, instead of giving a certificate of payment or re-conveying, amiontte terms on which he would be bound to re-convey, to assign the Cap. 102.] ASSIGNMENT OF MORTGAGE. 101 mortgage debt and convey the mortgaged property to any third veying. as the mortgagor directs ; and the mortgagee shall, by I»iP- Act, 44 (S 40 V iierson, ^irtue of this Act be bound to assign and convey accordingly. ^ ^j^ ^^ ■^~ Assignment of mortgage in lieu of re-conveyance : — The "-eneral effect of this section is to supplement the laorti^agor's right to a re-conveyance, by a right to an assifninent of the mortgage debt. The law as to re-convey- ance is tlm^ stated by Bythewood & Jarman (a) : " Where a lecal security is redeemed by the mortgagor, or by any other person claiming under him as a subsequent mort- crao-ee or otherwise, the mortgagee must surrender, or re-ccnvey the property to the person redeeming, free from incumbrances by the mortgagee, or any person claiming under him, and must deliver up all deeds and documents relating to the property : and, if required, verify such delivery by affidavit " (6). The same authors also say (c) : " Formerly a mortgagee could not be compelled to assign the security either to the mortgagor or a new mortgagee on redemption, or to a purchaser on payment of the mortgage debt out of the proceeds of a sale of the property ; he was merely bound to re-convey to the owner of the equity of redemption " (d). " Where a mortgagor is entitled to redeem" : — " Mort- caofor is here used in the wide sense mentioned in section 1 (4). Mortgage is also used in its wide sense according to the same section. Thus, in a recent English case (c), it was provided in the articles of association of a company that the company should have a first lien on the shares of each member for his debts to the company. This lien was ■ i •■ '■ i'l) C(;nveyancing, Vol. III. 4th ed. 1189. ('') Citing for this latter statement, Weeks v. Stourton, 11 Jur. N. S. 278 (IHr..-.). (t) Vol. III. 4th ed. 962. ('') Citing Smith v. Green, 1 Col. 563 (1844) ; Dunstan v. Patterson, 2 Ph. 341 (1847). (f) Everitt v. Automatic Weighing Machine Co., L. R. 18';2, 3 Ch. 506. ! ^ iil 102 REAL PROPERTY STATUTES. [R.S.O. held to be a charge within the meaning of section 2 (/); and consequently section 15 (ort- gagee seeks to obtain, and has in fact obtained, a re-conveyance ; but the mortgagor says, ' No, I will have the first mortgagee transfer the estate to my nominee '. I am of opinion that he has no such right as he claims." The justness of the above decision, as between the second mortgagee and the mortgagor is unquestionable. But the effect of the decision appears to go further, and to permit the first mortgagee to insist on foreclosing or selling unless paid, and, at the same time, to refuse to transfer or re-convey, except to the second mortgagee. The effect of this is, that no advance can be obtained to pay off the first mortgage without paying off all. This has been remedied by the Conveyancing Act of 1882 (Imp.) (/), the provisions of which, however, we have not j^et adopted. If a first mortgagee convey so as to defeat a second mortgagee, of whom he has notice, it seems he will be liable to the second mortgagee (m). {j ) Our 2nd section. (k) See Marson v. Cox, 14 Ch. D. 140 (1879). (/) 45 & 4t? V. c. .39, s. 12. (m) See West London Com. Bank v. Reliance Bldg. Soc. 27 Ch. D. 187 ; 29 Ch. D. 954 (1884). Clip, m.] 105 "On the tenm":^ln Alderson y pj . %ey was tenant for life, under sefcl, f^? ^''^' "^^'^n ^^■"•^; -;<'< b, order of th'e eour of teT; ./f '' ''^^•^^' ;''^-: '.J^clared tl.at if tlie mortgac^ed pre nf "^•^' ^^^'^' ^^ bj-Jn,u they were to be held bl /""" ''^''' ^^^«^«^ed Pondino- ,vit]i the uses and linLZ T". *'""'*' ^«^^'e«- «ettle.nent. ^""itations declared by said Chitty, J.; .< After that order John FI asks for an order, that Waterson shouW f ^T '°"^^^ ^"^^ .-^ge ,snn|,ly to the nominee of /oln FI "f '' '^^^ "^^^'t- ^s. whether EJ.ey i, entitled to the of cfef '^'' ^"''^^"" "Takincr the languarre of thp 'J'"' --'■^. 'on the tern.: on Jhich h's ""'m' ^ ^^^^ *^- -eonvey' do not refer merely to I ^'"^'^ ^' ^°"»d *« '"te^-ost and costs, but to 'the tenn """'"""^ °^ P^'^^^P^^ ■ >fe leo-islature intended simn ' n ^'"''^"^ ' ^^«^"«e if -Hi costs, it would hav^ten^ ? "/" '? ^"^"^^P^^' "^terest face of th, order of the 27th T T"^ *° ^^'""^^ ««• On the ^^-^ f "^ %ey is noten ^edt f f ^^ ?^^^'^ '^ -^ ""conditional re-conveyanc he ean o f ''"'' "^* -^^*' - ance on terms. The term.^ .? "^-^ ^'et a re-convey- ;^'-7^ to the le^al^eXr whLt: '" ^^ ^^^^^ ^^ e.^al conveyance. It appearl the,- f ^^^^ *^^^^ °" the ^f "^'Sht propose must be It .rf''' '^^"' ""^ ^^'^^^^er the deed." ^" '^ transfer corresponding with ^ ■ -.ts of certain i„cumbmnce«(.)P"'" "^^tion: ^^'^ '"^tter on the subject of this '«^26Ch.D.56r(l884) ;";«Ch.D. 102,103 (1890). ^^'' ^«0-R- 438 (1888),,.. Boyd. C *' ■f^k' \ 106 REAL PROPERTY STATUTES. [R.S.O. (a) As to what covenants may he required in the assignment : — " So far as the form of conveyancing under this Act is concerned, nothing more can, in my opinion, be insisted on, than the covenant which is usual from trustees, viz. : that against incumbrances. The other covenant as to what is secured by the mortgage is at best of little use. If more is exacted by the mortgagee on redemption than is due, as between him and the mortgagor, there is the right to recover this without a covenant, and the covenant establishes nothing against the mortgagor, who is not a party to the transfer." (b) As to the form of the conveyance : — " The form of the conveyance depends upon the circumstances. In a case where the money was paid by one who had not the whole equity of redemption, Lord Hatherly said it shoiili] be drawn in such a nianner as that there should be very little difficulty upon the subject afterwards, and there should be expressed on the face of the conveyance a state- ment of some kind with reference to the exact position of the parties, shewing tliat the person so redeeming, havini: only a partial interest, is to hold, subject to the rights of redemption of all the parties who hold other interests: Pearse v. Morris, L. R. 5 Ch. at p. 231. See also Boyd v. Petrie, 7 Ch. at p. 392. In proppr technical shape the instrument should be framed so as to assign the mortgage debt and interest and the full benefit of the securities collateral and otherwise held for the same, and then to convey the estate subject to such right and equity of redemption as subsists in the premises by virtue ot" the mortgage transferred." (c) The collateral securities: — "It is of moment to provide for the securities, and refer to them specitically in a schedule, or otherwise, because they might be separateJ from the mortgage itself, and so give rise to great compli- cations : Morley v. Morley, 25 Beav. 253 ; Walker v. Jomi \A ■' '^ Cap. 102.] RIGHT OF MOnTOAOOIt TO ISSPKCT DEEDS. 107 L. K. 1 P. C. 50. . . . The securities, when delivered or endorsed, would have to be held by the person redeeming on precisely the same terms as they were held by the bank." (d) To whom transfer to he made : — " I deem it of no importance that this transfer is drawn to the subsequent niort). It seems, however, that, while the mortgagee is not compelled to apply the moneys to the payment of the principal and interest as they accrue, neither, on the other hand, has he (x) lb. at pp. 349, 357, 3G8. (y) Ih. at p. 356, citing Austin v. Story, 10 Gr. 306 (18(53), and other authorities. (z) Ih. at p. 369, discussing Corhani v. Kingston, 17 O. R. 432 (1S89) This latter case is referred to in Barber v. Clark, 20 O. R. 522 (1890). (a) lb. at p. 367. (6) lb. at p. 349. K' ^jflS^iV Cap. 102. ] MOJi TO A UKE A USORBINU LSS UJiA SCK 111 % tlu- ri"lit to apply tho money.s to principal and interest not yt.'t due (o). Can viortffafjo's eonmluhitc far parposc, of aJtsorhlng iiwirdtice motifjjs .^ — In the recent case of lift Union In- mmnee Goinpiiny (d), there were a first niort<;a(ulijec't-inatter expressed to be conveyed by him, with tho inrsou, if one, to whom the conveyance is made, or with the (<•) Ih. at 1). 309. {:!] 2^ O. R. 027 (1893), citing Corham v. Kingston, 17 O. R, 4.34 ; Fronte- iiac Loan Co. v. Hysop, 21 O. R. 577; J^dmonds v. Hamilton Provident and I.naii .Societv, 18 A. R. 3()7 ; Howes v. The Dominion Fire and Marine Ins. ('.!., S A. li.'(>4!) ; Anderson v. The Saugeen, 18 O. R. 355; Mitcliell v. City cf London Ass. Co., 15 A. R. 262 ; Cummins v. Fletcher, 14 Ch. D. 711. y) In a case where the policy read :— "Loss, if any, payable to B. , . . liis interest tlierein being as mortgagee," B. w.i.t held entitled to bring action nil the iHiliov in his own name : Brush v. ilitua Insurance Co. 1 Old. 459 (1>W). _(/) Sit further McKenzie v. ^tna In.surauce Co., Rtiss. Eq. Dec. .340 (If*"'.!), case where mortgagor insured on his own account and refused to assign policy; Troop v. Mosier, Russ. Eq. Dec. 189; VVyman v. Imperial Fire Ins. n...r of the revel^ion "^ ™'"'"' '" "'O lessor or «""■»-■•.« the LZl'Z'' ^^-"'-'-The words :'l™ly been mentioned a" ini-LT'''"^'' "'"<='' ''-e ■"taKloJ to obviate a diffiedtv tS '' •■" ''■ =• '»■ -'=^0 %''■»(/'), where the plainTiff ef , '""""' '" 'io'^in^on y '"'■ ^'^euto^ of thet : ^;'r»^,^ '^ "' «- -ignee of '^lo'iure. The Chancellor rVa„l ! ""='' "°"fe''" foK- ;""f « (0. while giving '^:tT"f ' °'"^^'='^'^ "'«'' 'he '^Sa estate, did „ot gi.^ / "^'J^ ^a^e „ ^„„^^^ ^^^ Sale of moTtanno i ^^^^ °^ assign it « 7 lictrth'f s^yrxrt 'r ^- ^^-«' ■■» mortgages:- Where an execul M "' ^^ '""-'«"°'^. of «•; t-t„t„r, taking the p„" htor''' ." """■'«» ^iven to -If .or order, it „"aa held "hat tj, *f ''"^""^ '" '■"»- , «e,pt of the original dehf '" '"" """ounted to a «W» with the .nort^a!^ l^'*' 7'';".^ ">" executor charge! ""-•e»«ng point arose iri^r v r""""'""'-^ '''"'-r ^ «•«.=„„«, ^'^*--*-™W. The facta <''' f-'. S. IT. c p «7 ^ 'i ^ p ' I ' I* 0f W I'' 122 JtEAL PROPERTY STATUTES. [R.S.O. were : — J. S. directed his executors to cancel and entirely release the indebtedness of his son W. S. upon a mortgage made by him to the testator, such release to operate and take effect immediately on and from the testator's death. W. S. was also indebted to the testator on a promissory note and for goods to the amount of about $3,740. W. 8. demanded a discharge of the mortgage from the executoi-s, and they refused the same, claiming to be entitled to pay- ment of the other indebtedness before giving a disciiarge. The finding of the court (I) was in favour of W. S. It was also held, following Nortkey v. Northey (m), that, though at law the assent of the executor is necessary to the vesting of a specific legacy (in this case the bequest of indebtedii'ss being a specific legacy), yet in equity he will be decreed to deliver it, being considered there as a bare trustee. In other words, if an executor (as in this case) refuse liis assent without cause, he may be compelled to give it («). Disc}iar' *'* certificate of discha,ge, iZrdint\ T'"^ ^''■" '^'ho e.vocuted by the pe in ^ZmJ K ,"" '^"'' ""«' be money and to discharge the mort™5' ". '" ''""'''■'' "'" fo.™ of Schedule L to that Act o^f .V ""1 '"»^' >« '» "'o "ft «n "t section 76 of the ihe movtgatror or ntI,o ^ "otohiiged trael^pT;"'!^^":!-"^' *» -■*--- ■"-ton having at hi own ettnt'' '"'"*''«*' •"'* ™«y ™rt,?aged lands, include a 1 " 'T"™^"'"^ "^ "'e bra„ces(,/). """"S " "o^enant against incum- '"^^rhrrSfrVauf- ^ '° ^^-^^ «'e *t„tory '» operate as a reconvlyant ' Tt"'"'" '' '"^ '"■'"- '* '™«ly of the certificate of? ^ " "°' "'"execution '■'Jis'mtion together whch,lrrr ''"' *'"" "J "■« «"=! the .'eeonveyance takesTfr T t ^ " '^"'"■^ynce (s) ; tration {)). ^ *""''' effect from the day of regis- -ie;?JS'^«-^.o.,S87,e..H...,,„„„^^ WMcU„„.„„ „.r_. -_ ''•«-21(Ont.),,.76; «"tr:''"'^":.^«'-«lih'or ; and the receipt in writing of the mirvivorH or lant mirvivor of them, or of tlie |K'rwonal repreMentatives of the lost Hitrvivor, nhall 1m( a complete dinchargo for all money or money's worth fi>r the time iK'ing due, notwithHtanding any notice to tho payer of a neverance of the joint account. (2) Thin Hection applie>) cmly if and a« far as a contrary iiitrntinn in not expren.sed in the mortgage, or obligation, or tniii.'^fer, and shall have effect subject to tlie terms of the mortRaj,"'. . 4'J V. c. 20, s, 15. 15. The honn jidr jiaympnt of any money to and tlie receipt thereof by any perscni to whom the same is payable upon any (■x()ress or implied trust, or for any limited purpose, and sucli Iiaymciit to and receijit by the survivor or survivors of two or more mortgagees or holders, or the e.xecutors or administrators (if such survivor, or their or his assigns, shall effectually dis- cliiirKe the jjer.son paying the same from s(!eing to the application or V)eiiig answerable for the misapplication thereof, unless the wintrivry is expressly declared by the instniment creating the tni.st or security. R. S. O. 1877, c 90, s. 7. .S'w also Rev. Stat. c. no, 8. 8. Elfect of section 14'- — Section 14 has had a certain effect on the law as existing in England, but it is not so easy to see what effect it has had on the law in Ontario, which already was greatly in advance of the English law. It is our duty, however, to try and explain the state in which the law has been left, after the introduction of the present section into our statutes, which introduction was effected by the wholesale adoption of clauses from the Imperial Conveyancing Act of 1881, with little or no regard to what the Ontario statutes already declared. To begin with, there are well known in law two ordinary ways in which more than one person may hold property together, namely, as tenants in common and as joint tenants. Now the estate of joint tenancy is chiefly dis- tinguished from the other estate by its characteristic of m^m 1 Y ,.' |s:!«'l • 1 1 if' , ■;' 1 r.hit ''U. -# 126 REAL PROPERTY STATUTES. [R. S. 0. survivorship. This peculiarity of survivorship has the advantage of simplifying the transfer of property, but is considered inequitable as between beneficial owners. With regard to purchases, etc.: — Our legislature lias, except in the case of trustees, considered the estate of joint tenancy as a thing not to be favoured. Accordingly we h'we a section as follows ; — "Where by any letters patent, assuranco or will, made and executed after the first day of July, 1834, land has been or is granted, conveyed or devised to two or more persons, other than executors or trustees, in foe simple or for any less estate, it shall be considered that such persons took or take as tenants in common, and not as joint tenants, unless an intention sufficiently appears on the face of .such letters patent, assurance or wiM, that they are to take as joint tenants." (a). With regard to mortgages : — Whether or not a mort- gage would be included in the word assurance in the preceeding section, there is no doubt that in equity the courts in construing mortgages leaned to tenancies in common. Thus in Morely v. Bird (b) we find the Master of the Rolls saying : " So if two people join in lendin;:^ money upon a mortgage, equity says it could not be the intention that the interest in that should survive. Though they take a joint security each means to lend his own and take back his own. But that was never extended to grants." Now this equitable doctrine renders it very inconve- nient to a mortijafjor to take a loan from more than one lender ; as in the case of the death of either he is put to the trouble of finding out the representatives of the deceased . ) pay them as well as the survivor, instead of merely having to deal with the survivor alone. Tills has been remedied in Ontario in a very extensive manner as we learn from Dllke v. Douglas (c) : " We have (rt) R. S. O. 1887, o. 108, s. 20. (6) 3 Ves. 031 (UW). (c) 5 A. R. 70 (1880). Cap. 102.] MORTGAOES ON JOINT ACCOUNT. 127 already quoted the terms of section 9 of chapter 90, C. S. U. C. (12 V. c. 71, 8. 10) {d), upon which the appellants iimiuly rely. It will be remembered that it makes the bona fide payment to, and receipt by, the survivor of several inort""ivees or the executors or administrators of such survivor, an effectual discharge to the person paying the same from the duty of seeing to the application or being answerable for the misapplication thereof. This clause was borrowed from a corresponding one in the Imperial Act, 7 & 8 V^. c. 76, which, however, was repealed by 8 & 9 \'. c. 100, and it was after this repeal that the mortgage under adjudication in Matmn v. Dennis, 10 Jur. N. S. 401 was made. This repeal was no doubt due to the con- siderations pointed out by Mr. Bcllenden Ker, in his well known letter to the Lord Chancellor. In his opinion the real iuconvenienco to be remedied arose in the case of the death of one of the several trustees who had lent money upon a mortgage. We may cjuote the passage I'l-om the letter which contains his comments upon the provisions with which we are now concerned : ' It was to remove this inconvenience that the clause in question was framed ; but it goes far beyond the evil in question, by making the receipts of the survivor of all mortgagees who are at law joint tenants sufficient. Now in practice many persons not trustees, etc., take securities in joint tenancy ; and it would seem very inexpedient thus to repeal generally the salutary oiiuitable rule as regards these securities, and to allow the survivor to possess himself of the whole funds without the concurrence of the representatives of the other ecjuitable tenant in common.' Tlie prompt repeal of the section proves that this view of its inexpediency prevailed with Parliament. But our Legislature must have thought that different considerations were applicable to the circumstances ot this comitry, for the clause was enacted here four years ((/) Our present Hcotion in. ll f)-,l. I. .^ : I ?•■ i 128 REAL PROPERTY STATUTES. [R.S.O. after its repeal in England. We apprehend that there is no doubt that the construction which Mr. Bellenden Ker indicates is the correct one. The surviving mortgagee could already have given a receipt valid in a court of law; the statute freed the person paying from any equitable obligation to see to the application of the money. Thus the survivor became, as far as the person paying was concerned, the person entitled, both at law and in equity, to receive the money and to give an eft'ectual discharge from the debt. To that we must then couple the 60th section of 32 V. c. 10 (e), whicli makes a registered certifi- cate, executed by the person entitled by law to receive the money and discharge the mortgage, as valid and eti'ectual in law as a release of such mortgage and a conveyance to the mortgagor. It is impossible to draw any other con- clusion than that the registration of a certificate given by the survivor upon payment of the debt, eflectually dis- charges the mortgage and revests the legal estate. The whole tenor of the statutory regulations excludes the supposition that the survivor was authorized to receive the money and discharge the debt without being empowered to reconvey tie legal e.state." Change r fee ted hy section IJf.. — Now what does the present section 14 add to this state of the law \ A good dtal of the phraseology of that section is explained by reference to a very common clause inserted by English conveyancei's in mortgages to trustees, somewhat as follows : — " Wit- nesseth that in consideration of the sum of now paid to the said mortgagor by the said mortgagees {oxd «/ money belonging to them on a joint account), the receipt whereof is hereby acknowledged, etc." This form of clause is an expedient by which trustees (1) obtain tlie advantage of survivorship, and (2) do not disclose the {e) His LordHhip meant the (JOtli seotiim of 31 V. c. 20 ; R. S. 0. (l!^*' c. 114, H. Git ; now 50 V. c. 21 (Ont.), s. 70. 'f^% Cap. 102.] I^ECEIPTS OF MORTaAGEE. trust (/) which disclosure would in ~i. niortoao;oi. liable to see to the annlicnH ^'^"i f • '''"'^'^'" *^'*'' Both the sufficiency of theTec^^^^^^^^^ '" ^^^"^"^^• the non-liability to see to thr r .^^' '"^•^^^'^^' ^"'^ Lave been secured to he Jo '^^^ ^' P^^'"-^« Conveyancing. Act of lS8l7r tT '" ^^^"""'^ ^"^ ''^' Iatten,ein,otr present sectL^\:t"^^^^^ ? '' ^''^ •same privile.^es are already secured i„0 T '^'^ "^^'^^ present section 15, what new ri'hf 1 ^"""'^ ^^' ^^^^^ tl.i.s Province ? '^^^ ^^^« ^^^^^^n 14 added iu To answer this question J^^ "' "■"»• ""'y '-efera to the bonaUch I ''*'"''' 0), K » '-Wl mlo some different arran^enfenrf!,. ■' "'""'"'' ^ «'>'«'■ tl.at the substituted mort'^oe W ''*"'''"« '' ^* '" ■"»"«' 7'-l»t to Paymen,tur ie'd?:;?'', ■^"""'^' '' - l'l« sueh an extended con,t.-„eHn ' "' ^'^'^y *<> -hml and ohvious in,;:"": LT T" *,'" ^''"•"^ ''•' -l«f™e of e,i„ity shall be co ft 1 J ! ''''""^""" »* "- payment of n,oney, and there is nnH ,"'*' "' ""'"''I g.vini;the.vu„oeffeet"tott, ? ' """''' «'"™nt us i„ - '0 a receipt of ,„oly,"" "^^^'"^^^ °f ""other seeuri^; -^ow the last f»l • «'tainly is „,„,, ,,.,;'";] '" ^"-"ion U, sub-section , , ) "l«ve.forit,nakest lele^^^^^^^^ '^ -'» ■•"'-?-''■.' »'"plete disehar,-e .loH?,'^ » «''-'tinf; of the survivor ,, <^') -lO V. c '>0 s" K ■ '" ^ ^- R- ^^ P. '77 (1^;;;" "•" '"^" ^"'- ^'^^ ^'-^y '^f .A.ly, 1«SC. . '.') I'i-osont section 15 1. 130 BEAL PROPERTY STATUTES. [R. S. 0, m m : To sumniarise: — A. The receipt of any surviving mortgagee (or his representative) with bona fide payment to him is an effectual discharge. B. The receipt of a surviving mortgagee (or his representative) under a mortgage con- taining a "joint account " clause (k), is a complete discharo'e whether the payment is in money or in some other form. The provisions of 22 & 23 V. c. 35 (Imp.), s. 23, and 23 & 24 V. c. 145, s. 139, which correspond to our present section 15, and which like that section only related to the payment of maney, have been repealed by the ampler provision in section 36 of the Conveyancing Act of 1881 (0- Will courts go behind "joint account" clause:— Th use of the w^ords " as between them and the mortgagor or obligor," in section 14, is to be carefully noted ; for it has been decided that while the court will not go behind the "joint account " clause when dealing with the rights of the mortgagor, yet as among the mortgagees themselves the court will go behind that clause and look into the real nature of the transaction (m). Thus in lie Jackson, Smith V, Sibthorpe (n), the court, notwithstanding the evidence that the effect of the joint account clause was explainerl to the mortgagees, held that they were tenants in common, As it was very cleverly put in the argument in this latter case. " The joint account clause is mere conveyancinjj machinery, its object being only to facilitate the dealing with the property, and though a purchaser may not be entitled to go behind it, it is not conclusively binding oii the persons interested in the money." Right of mortgagee to distrain, 16. The right of a mortgagee to distrain for interest in armr u))on a mortgage, shall be liiniteil to the goods and chattels '! the mortgag(jr, and as to such goods and chattels, to such onl,vi< {k) Such as already given above. (/) 44&45 V. c. 41(Imp.). (w) In re Harman & U. R. Ry. Co. 24 Ch. D. (1883). in) 34 Ch. D. 732 (1887). €ap. 1( are not i not appj 4'-) V. c. '. ". a: J'owessior if liny, to interest or t'le provisi "f April, 1 interest or one of sucf tliereshalj I af'fJointed b t'le officer e shall, by not "I" his attorji t'le bnefit oi gi^en, the dis goods (listra/ interest or rei •■"•rears and eo so much of th( "leye.-tr'sarrea "f distress andi "f goods, and ] distrained, to t (2) Any offid "■''0 .shall pay., "'e next preeec ''""^•J^ therefor f'*) edtol«,„i '•"'t. 50 V. c. ^hmlar po^-e S"a;?es ^Yith '"Ode of enfo '"•' being p,jt r^'eniises by '"'«•• (1) a po^ (<>} A mere ijo ^^^^^^'Bythe, '"*% of |,g on 1 atrcM Cap. 102.] DISTRESS AND ATTORNMENT. 131 limited as to gooda. intereHt or rent. are not exempt from seizure under execution. This section shall not apply to mortgages existing on the 25th day of March, 1886. 4!) V. c. 29, 8. 3. 17. (1) As against creditors of any mortgagor or person in Mortgagee's possesion of mortgaged premises under a mortgagor, the right, JJ.|J*j"^^^ if any, to distrain upon the mortgaged premises for arrears of to one year's interest or for rent, in the nature of or in lieu of interest under the provisions of any mortgage to be executed after the 23rd day of April, 1887, shall be restricted to one year's arrears of such interest or rent, but this restriction shall not apply unless some one of such creditors shall be an execution creditor, or unless tliere shall be an assignee for the general benefit of such creditors apix)inted before lawful sale of the goods distrained, nor unless the officer executing such writ of execution, or such assignee shall, by notice in writing to be given to the person distraining, or his attorney, bailiff, or agent, before such lawful sale, claim tiie benefit of the said restriction, and in case such notice is so given, the distrainor shall relinquish to the officer or assignee the goods distrained, upon receiving one years' arrears of such interest or rent and his reasonable costs of distress, or if such arrears and costs shall not be paid or tendered he shall sell onlj' so nuicli of the goods distrained as shall be necessary to satisfy one ye;ir's arrears of such interest or rent and the reasonable costs iif distress and sale, and shall thereujMn relinquish any residue of goods, and pay any residue of moneys, proceeds of goods so distrained, to the said officer or assignee. (2) Any officer executing a writ of execution, or an assignee who shall pay any money to relieve goods from distress under the next preceding sub-section, shall be entitled to reimburse himself therefor out of the proceeds of the sale of such goods. (3) G(X)ds distrained for arrears of interest or rent, as afore- siid, shall not be sold except after such public notice as is now required to Ix) given by a landlord who sells goods distrained for rent. 50 V. c. 7, ss. 36-38. Distress and Attornment: — There are two somewhat similar powers that have been commonly inserted in mort- gages with a view to affording the mortgagee a speech' mode of enforcing the payment of his interest, instead of liis being put to the necessity of taking possession of the premises by means of an ejectment. These two powers are : (1) a power of distress for arrears of rent (o) ; and (2) an attornment clause {p). (o) A mere jxiwer of distress may be given in a mortgage without creating a tenancy. Chapman v. Beecham, 3 A. & E, N. S. 723 (1842). (p) See Bythewood & Jarman 4th ed. Vol. III. !)80. Reimburse- ment of officer or assignee. Notice of sale. 'f'f 1 I if i <'Ui p -^ |4 h V ': ■ li '■' 11 U' I 132 HEAL PltOI'KHTY STATUTES. [R. S. 0. Operation of section 76';— Section 16 seems intended to deal with the simple power of distress. We find that view taken of it in Ethnonds v, Hamilton Provident A Loan Society (q), where it is said : " Then as to the seizure of Leslie Edmonds' ^oods. If the distress was for interest simpliciter under tlie terms of the mortgage, the clause authorizing the distress would amount to a liceii e only, and would not warrant the seizure of the goods of a stranger. That was always the law, although there was at one time some difFerenoo of opinion on the subject, and I think that the claus he found in the Act respecting Mortgages, R. S. O. \ 102, s. 16, must he confined, as its language plainly imports, to distresses of that kind, and though perhaps annecessary, was intended ex abund- ante cautela to remo\'e (n. ibt .^ ^a the subject " (r). Attornment clause : — An attornuiont clause may be of either of two kinds : (1) it may be a mere sham, a mere contrivance and device to give the mortgagee an additional benefit in the event of the mortgagor's brankruptcy (s), or (2) it may be a bona fide contract for the creation of the relation of landlord and tenant between the mortgagee and mortgagor (t). This distinction has been fully discussed in our Supreme Court in Hohhs v. Ontario Loan and Dcheutun Company {a). " The reality of the tenancy between mortgagor and the defendant company depends in the Urst place on the sutH- ciency of the lease as a matter of conveyancing and in the next place on the bona fides of the transaction. (f/) 18 A. R. 347, 350 (18!)1) ; Corham v. Kingston 17 O. R. 432 (W', considered. (r) Cf. Freeman v. Edwards, 2 Exch. 732 (1848). (s) Ex parte Williams, 7 CJi. D. 143 (1877). (t) Ex parte Voisey, 21 Ch. D. 453 (1882). See Trust & Loan Co. v, Li» rason, (J A. R. 286 (1881). (u) 18 S. C. R. .')42 (18!)0) ; approving Superior Loan & S. Co. v. Liic* 44 U. C. R. 100 (187!)). ':i Cap. 102.] DISTRESS AND ATTORNMENT. 133 " The latter point lias usually been tested in England in tlie lic-lit of the bankruptcy law. Here we have no bank- ruptcy law at present, but it does not therefore follow that the intention with which the lease is made is to be disre- oarded. Creditors may be taken advantage of in other ways than tho.so expressly forbidden by the bankruptcy liuvs, and the right to challenge one of these leases is not confined to creditors. Some of the ordinary incidents of the relation of landlord and tenant are fitted to produce injustice, and the person affected by them must have the richt to question the reality of the relationship. A notable example is the I'ight to distrain the goods of a stranger, which still exists in Ontario though modified by statute, R. 8. O. 1887, c. 102, ss. 16, 17. " Kearsley v. Phillips [v) is an instance of the exercise of that right under the attornment clause in a mortgage, and in the case Re Willis (iv) one of the lord justices refers to that power as a reason why an attornment is more heneficial to a mortgagee than a mere power to enter and distrain (.>'). " It cannot be denied that a mortgagor competent to contract will be bound by whatever bargain he voluntarily makes with his mortgagee, and in attorning tenant to him, may if he please, agree to pay him rent at a higher rate than a stranger would be likely to give for the premises, but when the (juestion is whether there is an honest inten- tion to create the relationship of landlord and tenant or whether a tenancy is absolutely created in order to cover some other purpose, we can properly, and without interfer- ing with the freedom of contract, consider the terms of the lease as a part of the evidence bearing on the fact of intention." m ^MM n 1 u H" ' 1 ' 1*^^- -'!w I '! l^'l'l :rr»' -*->m ; '^ I a; f i 1 H _ - ', ■ T^ ^1 "^: : 1 : ' f If ■ ? l I 1 ( . (') 11 q. 13. D. 621 (1883). ^ (") •-'! Q. B. D. 384, '.m (1888). (.r)^Src also Diiubuz v. LavinRton, 13 Q. B. D. 347 (1884), Hall v. Comfort, IHl^. ]',. I). 11 (1887), as to t'fft'Cit of attornment, on the practice of indorsing writs. 1 \. 134 REAL PROPERTY STATUTE)^. [R..s,o. Section 17 is evidently intended to apply to the case where a bona Jide relation of landlord and tenant has been created by the mortgage. This we may infer from tlie third sub-section which requires the same public notice of sale by a mortgagee as by a landlord ; and from the close similarity of section 17 to section 42 of the Imperial Bankruptcy Act, 1883, by which it seems to have been suggested (y). The effect of both enactments is to limit the right, which the mortgagee-landlord had of distraining all goods found on the premises, to one year's arrears of rent or interest, in cases where creditor's pursuing their remedies would be prejudiced by such distress (z). DisadvanfacjeH of an attornment : — An attornment clause, while it has the advantage over a mere distress clause in respect to the seizure of the goods of strangers, has certain disadvantages ; of which the duel is the risk that such a clause will render the mortgagee liable (as mortgagee in possession) to account as against subse- quent incumbrancers for rent received or which but for wilful default might have been received (a). Attornments to two mortgagees: — Following the analogy of E.v parte Punnett (b), we may say that an attornment to a second mortgagee is not invalid because of a prior attornment to a first mortgagee : and if the amount of the rents fixed by the two attornment clauses is a fair rent of the property, valid distresses may be levied by both mortgatiees under their attornment clauses. Of course, such distresses will be subject to the present section 17. (l/) 4() & 47 V. c. 52 (Imp.) s. 42. {z) See Ex parte Hill, « Cli. IX 03 (1877) ; Er parte Williams, 7 Ch. 1). 13fi (1877). Hut tile inortRiipeo is in a rather worse |x)8ition than the lamlloi'd ; ■lec In re Lancashire Cotton Spinninpr Co., 3.5 Ch. D. 05(5 (1887). (a) Re Iron Furnace Co., 10 Ch. D. 350(1879). 22 Cli. I). 478 (188.J). But 8ce Stanley v. Grundy, {!>) 16 Ch. D. 220 (1880) ; following Morton v. Woods, 4 L. K. Q. B. 2!« (isoy). Cap. 102.] DISTRESS AND ATTORNMENT CLAUSES. 135 Forms of didress and attornment clauses: — There are innumerable shades of difference in these, but it may be useful to give a few general examples : — Distress clause: — The form in clause 15 in the schedule to the Act respecting Short Forms of Mortgages is a distress clause, and has been construed as a mere license to take the goods of the mortgagor (c). An attornment clause is in some such form as the following: — "And for the consideration aforesaid, the mortgagor hereby attorns and becomes tenant from year to year [d) to the mortgagee of the premises hereby conveyed, or so much and such part or parts thereof as are in the occupation of the mortgagor at the yearly rent of dollars, clear of all deductions, to be paid by equal half yearly payments on the day of and day of in every year (i.e., the days fixed for payment of interest) during the continuance of this security " (e). SJunn attornment: — As an extreme example of a sham attornment. Ex parte Williams (f) may be instanced ; the mortgage was to secure £55,000, the rent reserved was .£-20,000 ; " it was clearly intended only as a sham rent " (,7). illii; ■m ((■) Tnist k Loan Co. v. Lawrason, G A. R. 28G (1881) ; Klinck v. Ontario Industrial Loan Co., 16 O. R. 505 (188>S). {d) See In re Threlfall, 16 Ch. D. 274 (1880). ((') For form in cases of mortgage by joint tenants and tenants in common, m Ex imrte Parke, L. R. 18 E(i. 381 (1874). (/) 7 Ch. D. 138 (1877). Cf. Ex parte Jiwkson, 14 Ch. D. 725 (1880). ('/) The attornment clause is not intended to enable mortgagee to repay himself the ca|)ital advanced : Hampson v. Fellow.s, L. R. 6 Kq. .■>75 (1868). As to fffect of Bills of Salt^ Act-i on attornment clau.ses, .fit Mumford v. Collier, 25 il B. D. 27'.> (1890). (\ \\ ^■^w fiiW. ii ?! 186 BEAL PROPERTY STATUTES. [R. S. 0. PART II. Part II. of this Act represents Part II. of Lord Cranworth's Act (It), which part has been repealed in England by the Conveyancing Act, 1881 (i) and its placo supplied by sections 19 et scq. of the last mentioned enactment. Even after such repeal in England it has been held that in the case of a mortgage executed before 1881, the powers under Lord Cranworth's Act can be exercised since 1881 (j). As we have elsewhere more fully discussed the subject of Power of Sale in a work specially devoted to that branch of law (/.;), we may refer the reader to said work for further information besides what properly can be inserted under the succeeding sections of this Act. Powers inci- dent to mortgages. 18. Where any principal money is secured or charged by deed executed after the 11th day of March, 1870, on any hereditament.* of any tenure, or on any interest therein, the person to whom the money shall, for the time being, be payable, his executors, administrators, and assigns, shall at any time after the ex piratiun of [six] months from tlie time when the principal money shall have become payable according to the terms of the deed, or after any interest on the principal money shall have been in arreiir for six months, or after any omission to i)ay any premium or any insurance, which by the terms of the deed, ought to be paid by the person entitled to the property subject to the charge, have the following powers, to the same extent (but no more) as if they had been in terms conferred by the person creating the charge, namelj- : 1st. A power to sell, or concur with any other person in selling the whole or any part of the proi»rty by public auction or private contract, subject to any reasonable conditions be may think fit to make, and to rescind or vary contracts for sale, or buy in and re sell the property, from time to time, in like manner. Wi (h) 23 & 24 V. c. 14o (Imp.) ss. 11-24. (i) 44 & 45 V. c. 41, 2nd Schedule, Tart III. (j) Re Solomon & Meagher's Contract, 40 Ch. D. 508 (1889). {k) Treatisij on I'ower of Sale (18D2) ; The Carswell Co. (Ltd.) mS^ rv I .if^'i., Cap. 102.] POWER OF SALE. 137 2nd. A power to insure, and keep insured, from loss or (Ian; ge by fire, the whole or any part of the i>roperty (whether affixed to the freehold or not) wliich is in its nature insiirable, and to add the premiums i)aid for such insurance to the ])rincipal money secured at the same rate of interest. 42 V. c. 20, 8. 1. The 11th (lay of March, 1879, is the date of assent to 42 V. c. 20 (Ont.), by which Part II. of the present Act was originally enacted in Ontario. There are two powers contained in the present section, which are entirely distinct and which we may deal with separately in this order : 1st, the power of sale ; 2nd, the power to insure. 1. Pover of Sale: — The period of default after which sale may be had under this Act has been undergoing a grad- ual (liniinutioii. Thus Lord Cran worth's Act, section 11 reads, "at any time after the expiration of one year from the time when such principal money shall have become payable ; " 42 V. c. 20 (Ont.) i. e. the present section 18, replaced one year by six inonths ; still later, The Mortgage Aiiiondinent Act, 1888 (l), has replaced six months hy four iiKintlis. The period for arrears of interest is still six months as in Lord Cranworth's Act. 2. The power to insure : — This power is to come into Force "after any omission to pay anj'^ premium or any insuiance which by the terms of the deed ought to be paid \)\ the person entitled to the property subject to the charii;e." But in Ontario the usual insurance clause in accordance with which such premium " ought to be paid " is liased on clause 12 in the schedule to the Short Forms of Mortoages Act (m); and as the latter part of that clause \e«t.s a fuller power in the mortgagee to insure than that confei-red by this section ; and as according to section 29 of this Act such a power already existing in the deed pre- Cl 51 V. c. 15 (Ont.) 8. 3. See at the end of Part II. for text of this Act. O'i] K. S. O. 1887, c. 107. f^.') ::t . ; ,■•1 I $ r \: m / 1 . K. 'm I i I ( 138 REAL PROPERTY STATUTES. [U..S.(> eludes the operation of the power conferred by the piosint section, the result is that the power to insure undiir the present section is a matter of very little conse(|uence rr value. Receipts for l»urclia.se money sufti- cicnt dis- cliarges. '. ,i. 19. Receipts for piirchase money ffivon by thn pnrsmi r persons exercising the jKiwer of sale by the preceding siKti'iii conferred, shall be sufficient discharges to the purchaser, wh'i shall nut be bound to see to the application of such {)iirch:L Province, which notice may be given at nny time after any default in making a payment provided for by the dccii. (2) In case of the death of the person entitled suliject totlie charge, and of his interest therein passing to infiint heirs ^r devisees, the notice shall be given as aforesaid to his execiitiir< or administrators, as well as to lus heirs or devisees, as tlica-- may be. (3) The notice for an infant heir is to l)e served uimii ! • guardian, and is also to be served upon the infant himself.if over the age of twelve years. 42 V. c. 20, s. 3. Section 12 of Lord Crnn worth's Act had .nx mouty notice; this section has th7'ee montha notice; which in turn has been shortened to tivo months' notice (n). The words " to any subsequent incumbrancer aiul t" the person entitled," etc., leave no doubt as to notice beiiij; due to the " assigns " of the mortj^ajror. The wonlj "either personally or at h is usual or last place of residence contain an ambiguity. "His" maybe taken to refei to " the person entitled to the property," so that posting up a notice (or leaving it) at the mortgagor's residence may l^ | taken to be good service on the " assigns " (o). (7i) 51 V. c. 15 (Ont.), s. 3 ; for text see at end of Part II. of this Act. (o) Sec Major v. Ward, 5 Ha. 5<.tS (1847); O'Douoiiue v. Whitty, '.'Ol I 430 (1«8.'^). u^ • Cap. 102.] NOTICE TO EXECUTOns, ETC. 139 Improper sale not to defeat titU) of piir- chatier. Tlie words " at any time after any default " allow the notice to run concurrently with the period of default. ^utiee to executors, etc.: — Difficultie.s may arise in this connection where no administrators have been appointed (/>). The n >i notice to an infant heir (sub-section W) was snotfosted by the absurdity of the then, and (apart from this Act) present condition of the law on this subject. Tliis condition of the law has been stated in Uartlett v. Jail (7) where the mortjjagee served tlie widow and the administra- trix of tlu* niortpigor, — with a notice addressed to her as widow,— instead of serving the party properly entitled, u child of three years. The sale was set aside as he had served a person who " had nothing to do with the matter." 21. Wlien a sale has been effected in professed exercise of the |H)\vers lierehy conferred, the title of the pnrcliaser shall not he liable t<,. L, K. (1W)1), 2 Ch. S7. ' (7) -'3 Or. 140 (1880). : I I h 140 UK A Is nnoi-Kury statut/cs. '[11.8.0. to b(f mack- bt'tween (here Htat« paities and descrilie mortgage' proiierty), which Haid mortgage wa,s registered on the » day of (and if the mortgage has been assigned iwld : and has since become the pro{jerty of the undersigned). And I hereby give you notice that the amount due on the .e a,s in the case of any other registered instrument, and the fee t(i U- paid such registrar for registering the same shall l)e Hftv ant.-. 4'-' V. c. 20. s. (i. Affidavit for registra- tion. Certified copy of reg istered notice to be t'vidt!nce. ir'-i 24. (1) The affidavit for the purtw.se of registering the nntio- shall b(* made bj' the person wiio served the same, and shall prove the time, place, and manner of such service, and tli.it thi' copy delivered to the registrar is a true copy of the nulii'- served. (2) A copy of such registered notice and affidavit, certified under the hand and .seal of office of the registrar, shall, in all cases l)e receivecl as ]iri)na facie evidence of the facts tliiivm stated. 42 V. c. 20, .s. 7. These provisions as to registry are pi-ovisions that .should be extended to all cases of the exercise of a power of sale, whether under this Act or otherwise. The .'^alf papers in cases to which this Act does not apply, niav b'' deposited with the Registrar under R. S. O. 1887, c. ll.l but such deposit does not improve tiie value of such sale papers as evidence (r). (»•) R. S. O. lS8r, c. 11.5, s. 10. Cap. W2.] APPLICATION OF PURCHASE MONEY. 141 28 Tlie money arising by a sale effected as aforesaid shall be Applicaticjii uppliiii liy the i)erson receiving the same, as follows : First, in '" purchase iiavuK'Htdf all the expenses incident to the sale or incurred in aiiv iitti'iniited sale ; secondly, in discharge of all interest and costs thei'. due in resj)ect of the charge in consequence whereof the sale was made ; and thirdly, in discharge of all the principal inont'vs then due in resjject of such charge ; and the residue of siich money shall Ije paid to the subsequent encumbrancers accordiiijj to their priorities, and the balance to the perscm .•ntitled to tlie property subject to the charge, his heirs, execu- tors, administrators, or assigns, as the case may be. 42 V. c. 20, s. S. Section 14 of Lord Cranworth's Act does not contain tlie provision for payment to the subfse(iuent incunibranccis iiccordiiig tc tlieir priorities. Of course the payment to the (issijjit.s of " tiie person entitled to the property su1>ject to the charge" may be taken as covering su'nsefjuent incunibrancers ; but it is better to distinctly recognize the rii,flits of th(,' subse(]uent incumbrancers as regards the surplus. These incumbrancers are those already discovered by the preliminary searches made by the vendor under power (s) : and any others who may notify and prove their claims to him. Failing, subsequent incumbrancers known to him, the mortgagee may pay over the surplus to the ])erson entitled to the property, subject to the charge under which sale was had. Payment may have to be made to the niort- i^iv^or, — to a subsotjuent purcha.ser, — or to an assignee in iii.solvency (0, as the case may be. In any event, in the iiKsence of notice to the contrary, the mortgagee is entitled to pay ovf'i- the surplus to the apparent owner of the ecpiity of redemptioii ('t). 26. The iH^rstm exercising the power of sale hereby eonft^rred C(mveyance ''liall have power by deed to convey or assign to and vest in the (.],^>^,.f {■<) Srr lie Abbott V. Medcalf, 20 O. R. 2i»!> (18'J1) ; IMoor v. 15ank of U. C. •^O.S. 31(1844). (0 Cf. Calloway v. Peoples, 54 Ga. 441. (") HaiiH-r V. Culvert, 5 O. R. l.'»2 (18.S4). f K \ hi > Ml V I "1 f n h I 142 REAL PROPERTY STATUTES. [R.ao. l\ purchaser the property sold, for all the estate and inte'eii; therein, which the jierson who created the charge had [wwer to disiK)8e of. 42 V. c. 20, s. H. There have been several decisions under section 15 of Lord Cranworth's Act; to which tliis present section corresponds : In Re Solomon Meagher's Contract (v), an equitahh mortgage was created by deed, containing an agreement that, when called upon, the mortgagor would execute to the lenders a legal and proper mortgage with power of sale and all other powers, provisoes, and agreements usually contained or inserted in mortgages. The mortgagees con- tracted to sell the premises under the power of sale in Lord Cranworth's Act, and an application was made under the Vendor and Purchaser Act to determine, whether l)eing equitable mortgagees they could make an effectual conveyance. It was held that they could. Where there was a mortgage, by demise, of leaseholds it was lield that the mortgagee could, under section 15, sell the lease to a purchaser {w). Owner of charge may call for title deeds and conveyance of legal estate. 27. At any time after the power of sale hereby conferrHi .shall have become exercisable, the jierson entitled to exercise the same shall be entitled to demand and recover, fi'iiiu thi- IHTson entitled to the jiroperty subject to the ciiarge, all thi' deeds and documents in his possession or power relatiiifir to tli< same proi)erty, or to the title thereto, which he would iiave \)w\\ entitled to demand and recover if the same proi)erty had Iwii conveyed, ai)pf»inted, surrendered, or assigned to and were then vested in him for all the estate and interest which the iwrooii creating the charge had power to di8iK>se of ; and where the legal estate shall bti outstandinjf in a trustee, the jjerson entitle*! to a charge created by a pj^rson equitably entitled, or any purchaser from stioh person, sliall be entitled to call fur a con veyance of the legal estate to the same extent as the ix'rsun creating tlie charge coidd have called for such a conveyance if the charge had not been made. 42 V. c. 20, s. 10. ('•) 40 Ch. D. 508(188!)). ("•) 1!) W. R. (594 (1871). .SV'' furtlier lie Htnlson k Howes, 3.") Ch. D. fti< (1887), a case under the Convey. Act, 1881 ; and Re liichardson, L. H. 12 ^^l .■<98 ; i;{ Kq. 142 (1871), for effect of section 15, where tlie mortgaKor wii' i-egistered with an indefeasible title under 25 & 2« V. c. 53 (Imp.), s. 17. <':.!'• 102.] TAXATION OF COSTS OF SALE. 143 28. The mortgagee's coHta may, without an order, be taxed by one of the taxing officers or by the local master, at the Taxation of costs. .nstunce of any party interested. 42 V. c. 20, s. 11. Tiwation of costs of sale: — Section 28 is somewhat iiuletiiiite on the point whether such taxation may take place at'tei" the mortgagee's costs have actually been paid to the solicitor. Independently of section 28 the maiier is dealt with in the Act respecting solicitors (x), sections 42-46, which makes special provision for the case where a person, not lieing ciiargeable as the principal party is liable to paj/, or has iiaid, any bill, etc. The effect of section 28 is to (liispense with the necessitj' for an order. Section 28 is not expressly or clearly limited to the powers conferred by the present Part II. It has been held to apply to mortgages made before, as well as after, its enactment {y). 29. So much of Part II. of this Act as provides for a power tti sell shiill not ai)ply in the case of a deed which contains a [KiwiT of .lalf ; and so much of this Act as provides a power to insure shall not apj)ly in the case of a deed which contains a |K)\vei' to insure, nor shall any of the provisions of Vart II. of this .\ct a|)i)ly to any deed which contains a declaration that I'art II. of this Act is not to apply thereto. 42 V. c. 20, s. 12. This is a most unfortunate section ; as it is chiefly in Ciises where the mortgage already contains express powers, which for some reason turn out to be unavailable, that the impliiMl powers given in Part II. of this Act would be culled into use. The 32nd section of Lord Cranworth's Act juid the 19th section of the Conveyancing Act, 1881, !ue both more liberal in this respect ; the statutory power taking effect subject to the special stipulations in the iK'cd. Hero may be coTiveniently in.serted two amending Acts ivliiting cliiefly to powers of sale. (■i) K. S. O. 1887, c. 147. (y) Ferguson v. English ft Scottish Investment Co., 8 P. R. 404 (IS81). Provisions as to sale, etc,, not to apply in certain cases. :1 i V: :^^^i / '«• \ s M ■ 5 V. 50 r If ?; (f 144 REAL PROPKRTY STATUTES. [R. S. 0. ii in Short title. 51 Vicrr. Cap. 15 (Ont.). An Act to aineiul the law respecting Mortgages. [Asseiitfctl to 23rd March, 18S*. Her Majesty, by and with the advice and consent cf t!ii' Legislative Assembly of the Province of Ontario, enacts a follows :— 1. This Act may be cited as The Mortgage Amendment Act, 1888. Apijlication of section 2. (1) This section shall only ajiply to mortgages made sub- sequent to the first day of July, 1888. Payment of (3) Where default has been made in the payment of any principal . ' , , , ,. after default, pru'opal money secured by any mortgage according to tli- tenus and conditions thereof, the same may be ](ai(l at aiiv time tliereafter without i)revious nritice to the person entitled ti receive the sanu-, and without the payment of any intcrot :u lieu of sucii notice ; i)rovided ahviiys, that if in or by the sai(| mortgage! or otherwise there has been any express iigr('t'iiiv.'m with respect either to such notice or to interest to be paiii 111 lieu thereof, such agreement sluvll be binding and have the sanie I'ffect as if this Act had not been jjassed ; provided inor«inr, tliat tills Act sliall not be held as ap[)lying to any default 111 tl* payment of i)rincipal money that may have become due or pay- able only by reason of some default made in the payiiiMit if interest money secured or jiayable by or under any such ninrt- gage, or by reason of some di^fault made in the payment of aiiv instalment of princii)al money, or any jKirtion of any instaliiiHit of priiicii)al money secured or payable by or under any sm!; mortgage, but shall be held as applying to any such iiistalim-ii' in respect of which default has been made as aforesaid. Proviso. Proviso. Mortgages miwle prior to 1st July, 1888, not affected. (3) Any rule, question or matter of law or ecpiity atftrting ■ r arising out of any default in the ))ayment of money secured h\- any mortgage made either heretoft re or prior to the first day ni .hily next after the jiassijig of this Act, shall in all res]ii-cts, aiii for all purposes, be adjudged and determined as if the proviiiiuii* of this section had not been enacted. Change effected hy '>1 V. c. lo (Ovt.): — The law pre- viously to this enactment may be stated as follows :— A mortgagee whose money was not paid on the day appointed by the mortgage was entitled to six calendar months' notice previously to being paid (c). This was a (j) Harmer v. Priestly, IG Heav. 071 (18.'")3). \\\-m Cap. 102.] NOTICE TO MORTdAUEE OF PAYMENT OFF. 145 practice resting upon custom ; and the custom is founded on this, namely, that it is but fair that the party who has lent his money upon the security, should have a reasonable opportunity, before the transaction is put an end to, of Hu4 (IHSl) ; Matsoii v. Swift. .") .rur. (U,"* (HU). fdllottv.l in n, Hoiist.iii 2 (). H. SI (1HS2) : L.-tts v. Hutcliins, L. li. 13 Ivi' ITt) (isn, ; rayutiT v. Carew, LS .Inr. 417 (l.\")4). [n Bartlftt V. Franklin, 1.*) W. R. 1077 (18i;7). ((/) Day V. Divy, 31 Beav. 270 {18ti2). H H.r.s.— 10 Mi m Hi h. f'r I- 146 KEAL I'JiO/'KIiTV STATCT/JS. [R.S.O. to be bin(lin<(. Doubtless, unless the express aj^reeiiient disclosed a contrary intention, the former rule would apply, that when the mortgagor sought to pay, some notice, and when the mortgagee called in the niont'}-, no notice would be rei^uired. :2nd Proviso : — The sense of this proviso is not so plain as could be desired ; but the evident intention is to deul with what are called deceleration clauses. Thus there is generally a clause in a mortgage such as " Provided in default of the payment of the interest hereby secured, the principal hereVty secured shall become payable " (>). Pro- perly this clause is enforcable only at the option of tlit mortgagee (/); but to remove any misapprehension the legislature has inserted the second proviso, the eft'uet of which is as follows : — (1) When an instalment of principal has fallen due, the mortgagor may, after default, Avithout notice, etc., pay that instalment (not the whole principal). (2) The default of some interest, or of an instalment or portion of an instalment of principal, gives no right to pay ott* the whole principal without notice, etc., unless the mortgagee has definitely exercised his option of accelera- tion. Rev. Stat c. 102, ss. 18 and 2i) amended. 3. Section 18 of The Act respecting Mortgages of Real Estate, being chapter 102 of the Revised Statutes of Ontario, Lv*!, i> liereby amended by substituting the word "four" for the won! "six," in the sixth line thereof; and section 20 of the said Act is hereby amendtMl by substituting for the word " three," in the second line thereof, the word " two." See sections 18 and 20 above. Power of sale. 4. Whenever a mortgag. made in pursuance of The Act respecting Short Forms of Mortgages, being chapter 107 of the Revised Statutes of Ontario, 1887, contains a jxjwer of sale i" the form No. 14, in column 1 of schedule B to the said Act, tlif mortgagee, his heirs, exectitors, administrators or assigns niay, (e) R. S. O. 1887, c. 107 Sched. B. clause l.'i. (fj Cf. Cruso V. Bond, 1 O. R. .• P. K. Ill (1881). .i*^V {'a|). 102.] ^«06'^A7;/A7,.,sr.V/,^y?yv>;rA7e o^' <'>ALj,: ill .•vmMsi.ijf tiio «ai(i jx.wer, i„ Ii„„ ..f f„. • , pn.vif|ed for by ti.e .sai.l fonn \o. 14. c„I„„,„ 7/ '" '"-"^^'fli-'RH ';•"''"■ "'"' '"^^■" tHo Lenefit of the provi«i „ T; '' '"■"'^•^<'''''"»^'^ Act n..,.cting M.-rt^age. of Kc-al K tX '7* ^"■" "^ Tl... K<'v.se,i .Statutes of Ontario, 1S87 exc^ n 'l '"""' ^^'^ "^ "'" 'i"t Ik, ..v..roi.sal,le „„til after at 1,37 ""*^ '"«'' l"»V'.'r ..[.all - 1-t two ,„onth. notice. ;; ..eir ^rr''; ''"'''' -'" t'"' iH'-er contamed in .such n.ortgage be «,' 'r '"" '"'^^ ''>' -' '- ^- ^-n app,, to a sa,/nLe:'^;2 S^^.^^^^ "- 147 N t'W* •'■'•■^ V,c. Cap. 27 (Ont). M,,t^r'' ~' '^'^ ^---'-^'"^ IWer. Of S.,e in f"ll""-.s :- "^^^"'ce of Ontario, enacts a.s -™.i^;^:d;,i;;iSLt^aj.;l:^ ^«hs, ,. ,, ^ ^ ^, (=■') ^V'-..ver a .nortgage p„r„ I " -'l>--'^t.ons : , ,, ,„.• - U ^ee .,f Tl,. Act re.specting S " ?'"^ '^^'^ '"-'«' i" J.nr.su- ,. , tli:il)t..r 107, RevisHfl Sf .f 1 ! '"""'^ "^ Mortgages 1...;. roceuding.s „f-,i 1 •, '^'^'*'"'*^** »f Ontario mM7 "K^f-S Iming under power ■7'': ^^''"^h pn.vide.s for a .sale wuZ ', . ' '";""'"" '' "•>^^-'''- "^ ■^=^''-» h'« l'e.r.s, e.x,.cutor., admini.trato s .r . ' '*" """•^«'"*""^ '"<'rtg,vge.s. ";^- t. ,sell under and sell an^t ve the T''^": '""^ '''^'" "— '' ; '«r^ two of The Act respect W A ,.?""'*'* "^ *'"' '"•-'■^ions ' ''^- •*"-'''«/'•'' under R. s Q is«- , - « ^>U. l8,S<,c. 107, ehuLsel^. h^ 148 JtEAL rnoi'EltTY STATI'TES. [H.S.O- — after ccrttiin proceedin^fH mentioned in Part II. aljovo— in any inoi"t;j,a^e not contalninfj an exjnx'sft inncrr of s(i!)' ; 2. That in any niortjL^a^^e made in pnr.suance of the Short Forms Act, and containinj^ a power accordinj^ to the form therein, the above power of sale may be i xorcisvd optionally ; and •S. That, when in a mort;;a<.^e pnrporf hif/ to bo iiiiulf in pnrHuance of the Short Forms Act, there is a jxiivr)' of ftdlt' w'idnnit notice, the niort^a^'ee may exercise the jihovc power as if none other existed ; but 4. That, where the mortgaja^e does not purport to lie made in pui-suance of the Short Forms Act, and yet Ci)utains a power of sale that for some reason is not sufily available, there is no such power of sale imi)lied as abovi'; and also 5. That, where the n»ortga<^e does purport to be iiiailf in pursuance of the Short Forms Act, but its power of sal'' clause is excluded from the benefit of that Act for some other reason than th'^ excision of the provision for noticf there is no such power of sale implied as above. C'aj). 102. J I' '' 5 i- Ti!iu> for qiit'stiiiiii SilK'S liniited. 51 Vic. Cap. 15 (Oxr.) Continuki). 5. No sale litTetofore made uliall be declared to be inv.iliii"E "^ tlie ground or by reason only of the same having been iiwdt i" pursuance of a power of sale contained in a mortgage wlieri' sui'S jRUver has been exercistul by an assignee of sucli iiinrtyii- instead of the original mortgagee \niless within two y.'iirs atw the making of any such sale, proceedings have been or shall '^ taken to declare the same to be invalid or irregidar ; but nithiii.' herein contained shall be deemed or cimstrued to Cdiifirniaii} snch sale whicii for any other reason or any other gnmiiil inik'' be 8et aside, or declared irn^gular or invalid ; nor shall iiiiyth;i.'' herein contained affect any proceeding, suit, or niatttr, fitk' now i)ending or heretofore adjudged or determined, nr whu" j may be brought within tliree months after the passing I'f '■ ' | Act. f'of notice be ^^■'"'c'' this Htn ^''^' '-'•^ceutio,, c''iu«t' linn-tin. •^•^•wnted, it i.s"" ^"'"''■ti"norp,i ^" ^^'"'eh any ' '-\ Cap. 102.] EFFECT OF NOTICE OF SALE. 149 1 1 ;»'''ll 1 :';j m Cai'. 102— Paut III. 30. (1) I" onltT to pruvent the makinff of tiniu'ctHsary and vcxiitidUM CdstH in rf.i|n'ct to iuortga(fi'h, it is henshy i-mictwl that wlifTP pursuant to any condition or proviso contained in A inortKa?*- t'"'""'" '"'■'' ^''*'" '"■**'*' '"" gi^«" '*• d«niany such niorts'aife, or decUiring an intention to pro- ceed under and exercise tlie iH)Wer of sale contained in such nurtKMKe, no furtlier ])roceedinKs and no action either to enforce (iiR'li uiortgago, or witli respect to any chiuse, covenant or pro- vision therein ci>ntained, or tluf hinds or any |>art thereof thereby inurt);aj,'ed shall, until after the lapse of the time at or after wliicli, aecording to such demand or notice, payment of the uioneys is to be made, or the power of sale is to be exercised or jmK'eedwl under, be connienced or taken unless and until an order permitting the same shall first l)e had and obtained either friiiu the Judge of a County Court or from a Judge of the High Court. When de- mand of payment made or notice of in- tention to exerciae powi'rof sale given, no further i)ro- ceedings to Iw taken until expira- tion of time named in notice or denumd, witluiut order of a judge. (i) Such order may be obtained er, parte, but only ujwn such Proof on alfidavits and jjroof as will satisfy the judge that it is reasonable which order aud e(niitable tliat the proiM)sed action or proceeding should be JJp^'^jJ.^i allowed ti) be taken and proceeded with. Title of affi- davit or order. (;t) .Such atlidavit or order may be entitled as follows :— " In the matter of a mortgage purporting to l)e nuule lietween (describing the parti'M thereto as in the mortgage) and bearing date on tlie day of ." |4) This section shall not apply to jiroceedings to stay waste This section or other injury to the mortgaged premises, and the costs of anj' '^'"'' ^" ""^I'ljv aiiplication tlu-reunder shall be in the discretion of tlie judge. 47 V. c. 1(1, s. 2. to proceed- ings to utay waste, etc. '' Parftaant to any condition or proviso contained in a ))iortii(tije : — This means that the mortgage must provide tor iKttico before this section applies : " Tlie Act npon which this statement of defence is based, was passed after the execution of these mortgages ; but as there is no clause limiting its application to mortgages subse([uently ext'cuteil, it is a[)plicable to the present case if there is any cimditiunor proviso contained in these mortgages pursuant to which any dem md or notice requiring payment, or i i i 1 jiVM M. no HEAL PROl'EliTY STATUTES. [H..S.() '■IE (leclarinif un intention to proceed untler and exercise thf power of sale has been made " (/<). " No further proceed iv (jh : — An advertisement annoinic- injjf that the mort<;ttjijed land will be offered for sale, is a " further proceeding " : "I am of opinion that the adver- tisement complained of is a proceeding within the meaniin' of the words ' no further proceedings ' in s. SO of R. S. 0., c. 102, and that under the circu'ustances of the case, it Ik a proceeding that is forbidden by that section. I think the order for the injunction was rightly made for anytliiiij: that appears here. The order should, I think, be contiinieil as asked till the 24th November" (/). The defendants in this latter case seem in a measure to have been the victims of the Revisors; for 47 V. c. IG, s. 2, has "no further pm- ceedings at laiv or in equitt/"; and if that phraseoioifv had been allowed to stand it is not certain that an advertisenient of sale under power would have been held a proceeding. The following decision of Dalton, M.C., in J^'ri'j/ v. P<'rrji (j) explains itself : — " The notice of sale is dated on 2nil May. The writ was issued on 3rd May. . . . Now this is within the very words of the Act — and its spirit. The notice was dated the 2nd, the writ issued on the 'M. and both were served on the 8rd. 'J'hen a notice has been (/'wen, and a further proceeding at law had, before tlu' lapse of the time mentioned in the notice, and a suit liii-; been commenced before such lapse of time, without any judge's order authorizing the same. (h) Canada Pc-rmam-nt v. Teeter, 1» O. R. 1.58(1889); the mortgage iii (jiiestion liaviiKt a pruviHJon for sale witlumt notice. (/) Smith V. Brown, 20 O. R. KM) (1890) ; an interim injunction had Ixtn granted by (Jalt, C.J., uptm tlie ex parte application of the plaintiff. (j) 10 P. R. 27'>(1884). Ah to mnltiplicitv of actions .w further Iw" Flint and JelU-tt, 8 P. R. :«51 (1880); Hay v. McArtlnir, 8 P. R. 321 (\>^\- Merchants liank v. Sparkes, 28 (Jr. 108 (1880) ; Beatty v. O'Connor, 5 0. K. 731 (1884). bs- *^ C.ip. 1(11'. /'^)-.i/a;^7.<>/..,/.^.^,,,vat.sav^;,,.,. 151 " It ou'rht not to be .sunnoserl 1„, „ " ~" tl.c t,™ „ape,.s to«etl,e,. !oZaXZC\y ""■''"« »V "I'jV'ct i» to prevent all M '"'"'"^•- ''"'le "".i- .•» running, '^ft i.s Lt .e ^.'IT'f"'"- «"■'" "- to fullil tl,e very words of it "ff ™'J '""'<■■'• Oie Statute I- l-i".- to ti,e other. Bot tt """ "[ ""•' '"='" »'"'"''' «i"l yet the .statute he violated T '""•*; ^ ''""'' '"«<^""^^'- vice of this writ, with eo.sts ■ a„d T T *' '"'"^° "'" ■■""•• this suit upon payn,ent of the debt 1 1 ■ . ^"""""""H^ »> eo»t.s ,,f the writ, but without a„ ' e^t' If r' ""*' "' "'» vice ol the writ, and without „11„ "^ "W "'■ »«•- -"i™. The eosts of this a nlt^'^"'T ;" ""^ "«'- "f "■« "■■■.V "HI .o, a,ai„st t.:;rn;rr™* ■*' °»' - f- ■« 31. \V1„.„ .such demand i.r notio« ,. • ' ""'"f.VH .siriiml t.. Iw „aid l.v , '"qu'res payment „f all P„.. . •"«^in, ...eh den.a„d rtivh r;;,'." '^^.'""r^^. ^"« plrt t<.!::s- . "f »....h notiee or deman.l ; an if h '■'""'"•^'^' ^ the tenn. f' ''^ ;-'^'""- "'udeor tendere.1, t^ 'h I ? ^f "*" ^'x^'' P«y".ent ., ." 'l^.v^ noticv to .such lK>r«o„ by tL" er . •' ' "" *'"'" ''•'^■*'- "' c o"^" " ;•-;' ""•.' -o-'Uined by the clerk of T'"'"'"'^ '^' «'^"'^^ be ' '-'1 >"-t.--, an.Jn .^^ ^^^ :'^Y "'■*'"" *-' "''y'' ^'"'.' '"';""V« and co.sts are dulv mad" T"'."""'^' '"^>''"«»t "^ •■"'"'•••' "'"'•••to, or to l.i,s so ci ' ''"''"'■*'^' *" *''- person -"- shall 1. ,,een.ed and ke o'T "'7' '" ''"^^ ^^''^'^ the ■■^ tlM. ca-sc „.ay be, within the '*'*' ^•'" '"^"' ««• ten.kred -'i-o„.p,iance\hc;!::i;^':;';-^'';-'.noticeord:;^^ • ' * • C' lo, s. 3. 't'lii.s section has severni ««• . "■* V the n,ort,J! ™ T -J'- " ""*» «■' '■■^"- '■"l""-.- I«y.„ent oF J J "P'""" *" tolerate ,,-., ""-'!" I>"»il,ly have " . , "" ""f '^'"'■'" ''"-• ■""rt«,„..ee """™' "'"1 a It pivifc """,'"»■ '"'-■ost in lie'u" f • wj^fl rj:t;| fij. •«• "1. lO. R. 3.S4(I882). '^ 1 i 1 ( ; •I 152 liKAL PROPERTY STATUrES. [K.S.0 ruiThaH«;r 82. Tlie purchaser in ffood fiiith of a iiiortf^n^ff may to tin of inortKUge pxtfiit of the niurtgagu (and except a.n ai^ainst the nun't^juitdr. cit'fenee of '''" '"'''^» "xecutors, or adniinistrHtorw), set up tli" difc m.- ,! ])urcliiiMe purchase for value without notice in the xanie tnaninT n< > for value purchaser of the property niortgajfed niigiit du. K. S. (). Is" without ^ ;,r „_ j,_ notice. The object of this enactment .seeniH to Imvo hecii to remove a point of ditterence that existed aiiioni^ our judges. Thus in Srnart v. Mcl'Jwun {/), ve find Stioni: V.C, saying: — " 'J'iie plaintiff's etjuity beiiifj estalilishcd, it binds the defendant, although he took the transfer of the mortgage from Orde without notice and for value: tori adhere to my decision in the case of Ri/cknmn v. The Can- («/a Life Afifiuntnce Compa mj (»<,), founde<' on the authori- ties there quoted, that an assignee of a mortgage cannot set u]) a defence of purchase for vahie without notice." This view of things was diflerent from that taken l)y Vankoutjh- net, C, in Miilr v. Dunndt (»), and by Mowat, V.C. in Toticn V. DouqIuh {o). The present enactment came into force in iSTti (/o Since the passing of the enactment there have been scvonil decisions bearing on the subject. Jn Wruj/if v. L'ijn(ii there was the double defence of purchase for value without notice, and the Statute of Frauds ; in Bryhjcn v. /^"/ J'J.st((t(' Loan and Debenture Company (r) there was tln' double defence of purchase for value without notice ainl of the provision contained in R. S. O. liS(S7, c. 114, .s.S^! Herckmer v. Elliott (s) is a ease where from the circuni- (/) 18 Or, 024 (1871). (m) 17 Gr, .-wO (1870). («) IK Jr. 8r)(18G4). (o) 15 Gr. I'iO (18(i8); xff IS Gr. 341. Sre further London Loan Cc. v, Smyth, H2 U. C. C. P. ^)3U(1^82); Sanders v. Malsburg, 1 O. K. 178. (l>) ailV. c. 7 (Ont.), s. 10. (q) 8 0. R. 88(188,)). (r) S (). R. VXS (188.->). (s) 14 O. R. 714 (18S7). i!'i' ..f^' iil: Cum. lie,',) I'lltillASli mn VAU'K WITIIOlTMiTHK. 153 stiiiices of I'rjiutl in wliich the a.ssi<;nint'nt of iiu>rt;;a<,'o was (iri';iiially obtiiined the court consitlered it void even in the Imiids of »in innocent purchiiser. " Ktri'pt (iH afjdinst the m(ni(j(i(/i)r," rfr. — " It has never Ixcii serioUHly su]>po.se(l that in such a ca.se the as.si^fnee cipiild oluiin hy rea.son of his hi-iiio- a pui-clutscr for vuhie without notice of the real a_Ljreenient, to hohl the ni()rt;,^a;^'or liultle to tlu! full amount of the nioiu^y consideration stated in the niort<,mj^e (0." The "general rule is tliat the a.ssi^'nee takes subject to the e(iuities between the orKjinul partleH In the mortfidfic (u). {t\ Vri'SHt'v V. Trotter, 2(5 (Jr. KSl (1878); xf furtlitr Egli-Noii v. llowf, 3 A. IL .W. (lS7!t). {It) Wilson V. Kylf. 28 (Jr. lOJ (l.SSO). ''^ ^. h ii U.v fi R. S. 0. 1887, CHAPTER 101. ' ■" ■*, 1 W- &{■ if ik. ^ fe. • ' 1?. S. 0. 1HS7, CHAPTER 104. } n fij\ » K All Act r('sp"ctiii',' the Purtition and Sale of iieal Estate. SlIiiHTTlTI.K, S. 1. iNTKlfl'HKrATKiN, S. 2. .llHlsIiHTKiN (IK lIUiH C(H:KT. S. 3. HkAI. HKI'UKSKNTATIVK, s. 4. I'AHTriKiS <'(>MriI.M(IHY (IN JOINT TKNANTS, KTC, M. 5. ''iilliTs IN WHICH I'KOCKKDINOS MAY UK INSTITITKI), S. (!. KkMOVAI. ok I'HOCKKIIINC.S, S. 7. rKTlll'iN KOK I'AH'I'iriON, KOKM l)K, I'AHTIKS, KTC, SS. 8-11. (ilAlihlANS K(1K INKAN'IX AND I'KU- SONS IXHKAKK OK KOIt THHKE VKAUs, ^s. 12-'20. iNcrMIIKASCKUS, now MADE I'ARTIKS, S. L'l. SkUVK KOK I'KTITION : is 1 ASKS OK KAUTIKM IN ONTAKIO, s. •.'•_'. In CASKS OK PAUTIKH INKNOWN OU wiTHoi r Ontahio, ss. '2:\'J7. Allowance ok pktition, ss, 2S-30. Plfaimni; to rKTiTioN, ss. ai-32. ThiAi.oK issiEs, s. 33. I'llOCEEDINCS IN DEKAILTOK ANSWEK, S. 34. rKTITIONEKS TO I'ltOVE TITLE, H. 'X't. I'AHTITION by HEAl. KKPKKSENTA- TiVE, ss. 3(i ;«». Sale, when may he hah and i-ko- ('EEi)iN(;s, ss. 3.'), 40-43. Kkkeiience as to INCLMHKANCES, ss. 44-4»i. Payment ok iNcrMiiHANCEs, .ss. 47-48. Payment to tenants by theclr- tesy ok in nowek, etc., ss. 4!ir)(». NoriCE OK SALE, S. .")1. Estates ok mauhikd womkn to hk bocnh, s. 52. KVIKEXCE OK .IllKiMENT, S. ,53. Deed, contents, e.vecition, and EKKECT, S. .54. Al'IHUTIONMENT OK COSTS, S. 5.5. AIM'I.ICATION ok I'KOCEKDS. S. f)t'(. .Secikinc ithchase mom;y, ss. r>7-(>l. MiscELi.ANEois, ss (;2-(l'.>. / .»i; TTKR M.V.IKSTY, by and witli the advice and consent of ^-^ tlic Le{,nslative Asseinbly of the Province of Ontario, enacts as follows: — 1. This Act may be citod 08 the " The Partition Act " U. S. O. Sliort title. b77, c. 101, s. 1. 2. Wlitn' the fi)ll((wiiig words occur in this Act they slmll Ih- Tnterpie- iMiistrinKl in tlit^ iiiaiincr hereinafter mentioned, nnlens a con- t'lt""'- trary iiitentiim aii|)ears— (I) "Liiiid" and" Lands" shall include lands, tenements, "'Land." iiiid licmlitaiiieiits, and all estates and int«*rests therein ; (-') "Petitioner" or " Plaintiff " shall include all parties " Petitiontr." |«titiiiiiiiitf hy virtue of this Act; and all parties, or those "Plaintiff." iiiiiii \n partition : — Wliat the juri.sdic- tion possessed by the Court of Chancery in 1850 was, iimv be {fathered from a passage in Spence's E([uitable Jurisdic- tion of the Court of Chancery, published in 184G {h) :— " The connnon hiw of Eny;Iand provided for partition beiuix made between co-heirs, and joint owners in certiiiii cases, and the ri<;ht was extended by various statutes. The partition was ettected by means of a writ directed to the sheriff", wiio, in obedience to it, a.scertained the shares hy the verdict of a jury, and then assij^ned to each liisshiiri'. The court, by its jud;;ment, confirmed the partition. In former times it seems to have been considered that thi- party could only obtain actual possession by action : luitit was held by C. J. Cil)bs that it was the duty of the slieriti' to deliver actual possession of each undivided share. " But the forms of the couimon law were not well siiitii to the exerci.se of this jurisdiction : therefore, .some tiirc in oi- about the reij^^n of Elizabeth, the Court of Chancery als" assinned the jurisdiction of makin<^ partition tliroidi commissioners of its own; makinir the parties convey t" each other in severalty their re.spective portions. I In' H 1.1 it 14 V. c. .Vl(Can.). (h) Vol. I., at p. ti.")4. C;,|,. 101.1 NErESSlTY FOR REAL REPRESEXTATIVE. 157 superior facilities olieroil by the Court of Chancery occasioiu'tl numerous applications to l)o nuulo to that court for ciniiinissioncrs for the partition of estates, even after a partition had been effected at law, where the partition was UHciiual or l»a(l to be corrected. It was usual also toap})ly here in all cases where infants were concerned. It wjis soon established in all cases of co-ownership as a matter of rjulit. The proceeding,' by writ of partiticm at law, which had i,^one into desuetude, was wholly abolished by the statute before referred to (c)." " Jx, /*// till' liuvs in force in Ontario, woff possess. (f : " ',.'-. \va> posscs.sed at the time of the Judicature Act, which moi'j,n'il these Courts into the High Court. " Tlic Court of Common Pleas " for Upper Canada was establisiied in I.S19 by 12 V. c. CS, wbicli Act confe)-'-cd upon the new court the same Jurisdiction as that exercised by the Court of (^)ueen's Hench. What tlie authority of the Queen's (or Kintj;'s) Bencli was in matters of partition will appear from the notes to section 0, infra. 4. Till' JiuIrc of tilt' Surrogato Cotirt in every county shall Ije Jiulpe of till' real rcpri'.Mciitative for all real property within tiu'Cimnty, in Si,''ro),'att> L c 1 I'l I • -ir ^.11.. Cmirt to he roin'ct of or to whit'li anv person l)einir seised of, or entitled to , ' • ' '" real repre- aiiy estate in feu simple tiiercin, dies intestate, and for all otlier sentative. pMrpn^.s iiereiiiafter mentioned. K. S. O. 1877, c. 101, .s. 3. litiil rpprewntafire : — The lieir-at-law ; he represents the leal estate of his deceased ancestor (. ('/| Anderson's Dictionary of Law. I') 1 » & l'> \'. c. (1 (Clin.) ; taking effect 1st .Ian., lv.V.». u jffMiffl m 1 liPIl ^> ■if -'% If h ■ 1 1 4 ■^' ■ t ; i . 1 f; M • i » \* Vv "^ 15H REAL I'ltOfEUTY ST A TUT KS. [R.s.(). It was soon found, however, tlmt it was inconvenient to liave tlio estate vested in a j^roup of heirs-at-law, us we learn from tlie preamble to an Act passed in IHo? (f)\ " Whereas it frecpiently happens that in cases of persons dyinjj intestate, leavinjij real estate in Upper Canada, tliat by reason of the absence therefrom or of the minority of some of the parties entitled to pai'ticipate in the succossion to such real estate, no title can be ma•. iiiortpraffctm or (ttncr creditors liaviii^f lions on, ami ;.! IR-lli'd to parties wlio«(M'Ver iiitcri'stt'd in, to, or out of any laii-W"1eitrstn,c It. ;■"■'"""" "'• """■'• '■"- ™; - -y be rtom:';; ::;;""''''"""■"''■ ''''■-■ n.lc as to tl,„h- eon,pe„.,ati„„ fo ■ ,r, ! !!""' ^''' ""■'■" " " ;"".'uo„ p,.„,,erty. .. So .-emedy evirtst! '■■''*"''"' ™ "'^' "' a.p«,r, („,. i,„proven,ents) by one 0,!'^""''^ "''''-■'■*'' '""!,'..» the p,„,«,-ty i„ enioved ;,? '" ■=""""""■ »" «|H'..»™ of wln-ehnothin.. could lit '7 "" '" ""'■* l«"i» .■"joyed then- property in' !^ "'™''^"' •''" '""« ">' H'u '"i».';." end to tha't sK;trra ;;';;■"'■■» "-""^" t'MM„,,de,.„.l,at«-a»e.vpeade,l i,. "" "'■'•■■»»»n- '■'■ "'■■ -'p,.ov..„,ent., r Z-,t'\ 'r, "'f ™-' >■" value ™.""t take the increase in v,d".r«.,lr "T' '""■' P""-^' ""■'■™*.i value ; in fact t^e . . '"' '" "'*"" "'"t ""P-o...ent., i„ adopw 1^, T^'™"™ "' '""^ '■"P""" "".1 «m,sed value. ^ ^'t f."<^t'"n'"' h' accepting- the '"'"'■-■■ the tenuncvin comnmni "".'"■'»'■■""■"'» "i-e m,uie :''■"'■»"•» attaching L i, p ' c T'""' ','"■" "'" ^"l'"'''''!" '" "■';'"""" .10 "ot arise iy ;."""•'"■•* """'" <'>"'•"« tenancies '""-'""".n.clainuJtitle rZ ^:"' ""?"' ""'■'■'" '.'"""»» '"■'■' """ '"■'.-• » .lec,v i ~™"''' "7 .«'""'■' of Appeal " -^''''O'ce of the pmpertv t it '" """ '" "*"" '•»"•«"«■ I »'t), the p««e.s.s,„„„f the defendant :t!Srr: ^"'■'^'""" —■---.. M i 1. ^ I?'M'.'' 'it ■I 160 JtKAL PHOPHllTY STATUTES. [U..S.O, ceased ti) l)e that of tl»e plaintiHs (tlie other tenants in coiniiioii) and that they could not contend that tlie dctVii- dant was in, as their caretaker. 'I'his decision was reversiMj in the Supreme Court {k). " Co- parceners or fxirenirrs, a tenunc}' which arises when an Inheritable estate descends from the ancestor to several persons possessin<^ ane<|ual title to it. It arises liv act of law only, I.e. hy descent, which in relation to tliis subject is of two Uinds : (I) J)eHcent by the connuoii law, which takes place when an ancestor dies intestate, Iciiviii" two or more romalesas his co-heiresses ; these, accorditi"' to the canon of real ])roperty inheritance, all take to^^'tlier us eo-pai-ceners or parceners, the law of primo^euittnc not obtaining- anumjij women in e<]ual relationship to tlitir ancestor; they are, however, deemed. 1»8. (w) 14 & 15 V. c. «, N. IC; iio-.v U. H. O. 1887. c. 108, a. 40. in) 2 Win. IV. c. Jij, ». 1. ('.•i|'. Ml. 7'ro li" Shu tfstnti: I COIIIIIIOII. and wil'c the dcafli '••nil I. So ^» I'c as (i '",/'•", to r "^■■''IIIS to /|;| ''.\' 'iii'ans O '"'•'IVlMy .si, ff may l„. ^ "'"" "I" EsUi i'lfcivst uwU "■'I'V'i ca.s,. V ''""''t'-SS CO,, l'>i>",/r//i ''>■ 'hvou,. „|- '^ f'lat uUi'Vi "•'■'•'•>^ r..,. sIm, '"■'••'"■•uli. , '-' ■^•''^iii of f '"■"•'■'■'■■i u-o,,,,, M.-ur. ,. ,; "•'II-..S. II 1 1 ,<''%1 C«|i. Ml. ""'"■'■"'■"''•■'•"'■•"-• "...•.„.,..,..,. 101 ''''■"""I" ''//'■nl!,rlm:-\,, ,„, ' Ite Sk.nrr „„d II,,,, ,„.. , „, '""»''"« Jwrnt u,.o.% i,, <'«i»'". Tl„. .),„|^,,. „f' t|„: ' , I" '•■''^"•""'■.l A. K., ,,,,„ ,li,,I ""i'^™i i«"-titi..„ „H if ,s II ,,,,i"!!^^'.^""'' "f ■"'■■mi™,.. ' ■ ^'« •iMv,.„,i i„ t,,.. will ;■;';;'';;;■ '""■"^■» "■<''<^ o,,u.,v,i ■,''■'"■'-»« l..n„ att,,„,,t,.,| to J' ' ' '■■ ''""■'■'•;- Wl.ilo ; '» '■■ '«•,. ,.....; ,„ :;,,:,;;"••■ '-' t,.,„„t " '""■-■ '■" »■■■" t'> n„t,., I„nv, V . " f " :"'""' ''^"' •'••»'■'■■ '"•■.■■«t -i-v timt .Ac i , 'i ,;;;"■ ;;'"■: ••'•■'•' '•■ ^^.i- 1.,-- ■''™'"l»-< ™ul,| l„, |„,,,.,, t„ "^ ."' "l«.luU.|y (,/,, ,„„, '-- •.:ah,;t.::;T,;!,^;;'''':'''-An,.t,,i,.„,,i,,, ''"■"''■ ''''"•'■'• •■"■■• fon o ,; ', f '"■'■^'' '"' ■-'"■'•'■■''- "'■'-■ '''*'•''' "f •'■■■ -ii ,;,;;■'''?!''■■•''"'■ ''■^'•■•^ n..,,,, '''''''■'''' "•'■'''•■''■■M.-i.C, „;'''■■''■'';"'''' '■■-'■■"•.I t„ • ' • '^ <'<».((I,S7I|. r I, , ''■'''-■''■i™r..o,:, ;"!;"'■'"''•■■"■■•■-''■ '••■'r.-.n«r.-,,. ;;;;■"'■•■.. .^■o.K.;„.t, III I' i ,1 ! "];. ,1' ■ "!. I 102 JIKAL PJUU'EliTY STATUTES. [R.s,(). i \i^ this estato in an}^ particular case a matter of doubt and uncertainty. Such proviaioiiH of these enactments and u[ " The Devolution of Estates Act," and such decisions otom courts as bear upon this matter have been paticntiv collected and considered by Mr. E. J). Armour in his work on Titles {»), and the conclusion he comes to, except as vey;ards property in settlement (/) is the following' :— "If the [Dei'oliUuni of Ksfates] Act luul not been passed, it seems that all property acijuired [hi/ f/tf ici/r] under tin [.]fori'i(' not easy at first sight to see what etieet this can have on the rights of mortgagees. There is no question that tin parties interested in the equity of redemption may partition their interests in any manner they please ; but their jtar- tition will be subject to the rights of any mortgagee holding' the ivltole land as security for his debt. As an ahsolutt sale by the owner of the equity of a portion thereof woul! not aft'ect the mortgagee's rights, so neither would tiie par- tition by several ownera of the equity. As between the mortgagors and the mortgagees of tin whole property no question of shares could arise; tin (ti) At |>. 147 ft »ei}, (t) As to wliich, «e tb. \\ 157. (m) lb, at i>. 130, ''.1)1. 1(M.J ii)ort<'-a(i ihm. 1 1 (Mvnei-s 1 cHse (loir <'"i3' part ■Si II III; '|\\iier,s \v Tlio 4- 'Wei'taiuii u-Jiolc ,.,stu •■"ly of the is to iif rei estate 111 111; •li'-nvod to C'-ediiijLra {^v " A 11(1 t(t y. linnirttn '''irtitioii Ac "■'lere som.. " 'K'liiittc.i '"t''re.st.s (,F t f'"" foi- th,. l"'titioiier to f'"' ca.sr Un-th ""/'/."--Tiii, "'^ -^'idicat '"•'■'■" farroll) •<»:i. 1 ■■» ■> (ai'.UM.) WllKTIlKIl HSTATH LEHAL nl{ FAjriTMlLH. IGJ) iiiort<'iii?t'e owns tlic wliolo, subject to the right of retlemp- tion. It may, however, be the case that one of several joint owners has mortgaged his undivided interest (r); in which ease douhtless his mortgagee would be a necessaiy party to any partition. Similarly, the execution creditor of one of several joint nwiiers would be a necessary party to a partition. Tlu' 44th section further provides, in case of .s(*/<', for asci'it'iining what creditors have specific liens " on the wliolf estate, or any undivided interest or estate therein of any of the parties by means of any mortgage," etc. But it is to be remeiidjered that where the mortgagee of the whole estate himself is willing to make a sale, he should l»e allowed to do so to save the expense of partition pro- ceedings {\v\ " And (til ]>(n'fies n'hoHoerer liif('rei7 (1883). I'c) '*«''? Carroll v. Carroll, 23 (Jr. 4;!S (ISTfi). I H r, p. R. 145 (1874). IUMI S I? !:• 1 1 ! ';• i. 'i ' f 1 ' 104 UKAL PJKH'KItTV STATIITKS. [U.S. (I. .section instead: " .SS. When the interests in such «'stiiteniL' e }liv,'li Court, and uIht" tlic liinds are nitimtc in one count}' only, the iirocfcdiiiys mav I.- in.ititiiti'd in the County C'oiirt of tlu' county or in tiie lli|(|i Court, li. S. O, 1S77, c. lOl. ». ."j. Oi'iffin of section : — The ori;,nn of this section is tot" foiuifl in 2 Win. IV. c. 85, the preamble to which ivais: " \Vhert!as in many cases much inconvenience is expt'ritiicc.l fron\ the want of .some coiu't com))etent to ordor tli. partition of lands held in Joint tenancy, tenancy in eoiiiinnii and co-])arceny." Section I of the .same section enacts: " That all Joint tenants, tenants in common, and co-iuii- ceners of any estate or estates in lands, tenements t hereditaments within the Province, ma}- be compelliil ti make or suffer partition of such estate or estates in inaiuur hereinafter jjre.scribod, and that when such estate or istati- is or may be situated in two or more districts, ilii procee(lin;^s under this Act shall be heard before tlie Court of Kinj^'s ]k'nch, and when such estate or estates is(»niiiiy be situated in one district only, the proceedint;s imiy '" had before the District Court or C •ipplicah r Tlie ; ''"iirt, tuny "'•■Hiifh c, '■'Mirf, ,,|, n,. tiiinin, f(,|. -«fi■ •"'timn;.,.;, "■'''/"'"Ifcl |,y ,, Ci VJ V. ,.. <"» 'J'l- |.r,.s..n "'' -V""- the ;,. ''" Mwrrar v. ai.. 1(14.] M'l'KAL fikku coryTY TO II mil covitr. 1G.5 I. Distiii'ts, and lor providing; for temporary rnioiis oi' CniintieH for Judicial and other purposes, and for the future dissohition of such unions, as the increase of wealth and poimlation may re(iuire " {z). Section .*i of said Act made all the liiws then applicable to districts, to he thence-forward jipjilicuble to counties. 7. Tlu' |iicii'«'i(liiiirs (i|HHi ix'tition, if soiniiu'iii'i'd in ii County I'roccfdiiign Cnirt, iiuiv at any tiiiic tmfore jiuiKnicnt lie n-niuvcd intu J'IhoviiIiIh tlullii?li Cimrt liy crrtioniri, ti) \w iillowcd by ii .FikIk*- "f tin- (\,'",Vto" ^ C.iiirt, v\\ Ncciirity t)rinf,'giv«>u hy tliP party iipplyinK fiu-tlii' (•(/•- }jjjfh Court. tioriiri, for tlif I'tists of iIim iiriK-ccdingH on |ictitiiin, to tlie x»ti«fiK'tinn of tlif .Fiidgt' ; and u|)on any final judj;nit'nt, lUrrcc (iruriltT, an aip|»al may Ihi liad l>y any of tlm parties intercHtfd, iii till' siuiii' manner, and with tiic Hanw conHwiucnccs, as in otlicr t'li.Hi.s uf appeal from the decinion of any Court renderinjr such jiidKiiieiit, decree or order. K. S. (). 1S77, c. lOl, s. (J. " All apju'iil iiKiij he lidd" : — " l)urin<>^ the arufument it wivs .siiif^cstcd that an appeal did not lie in a spccidl case like tills; Imt on reference to the statute of Ontario resiu'ctin;:; partition, .S2 V. c. 38 (<<), hy the 17th and l Jud<;ment, etc.and by tlit> .'{7tli section, it is provided that upon any final decree nr (iidcr, or judgment, an a])peal may be had by any of the Iiuftics interestt'(l " (c). A j-riiliiliitioii to the county jud^e will lie in a case wliere he exceeds his juristliction under this Act (d). 8. Any party interested in any land in this Province, or the Any j>arties •iuly aiitlmii/.ed ajifent of such party, or the (guardian (duly i'itere.ste<| :il'l«'int.'(l l>y a .Surrogate Court) of an infant entith-d to the f"r'\!,ii.tf.'**" iimiieiliate possession of any estate therein, may file a petition in tion or sale. .my (if tlie Court-* aforesaid, praying that partition of such lands may lie niaile, or that the same may Inisold »mder the directions u-l l:' V. V. 7«. ('() The present .\et, c. 104. (M Now the :V2iul and I^ird. I') I!' Sli.vver, 31 r. (\ \{. CiO.*? (1H71). Sri' further Ftu-ness v. Mitchell, 'A. K.-mKI; and Jenkin,' v. .lenkinjr. 11 A. K. 1»5 (1884), cited under s. 35», '".''•" ■ \V'"m1 v. Hurl, L'S (Jr. 14(i(lSHl). i'/) Miiriar v. 15olton, .■><>. R. H»4 (1884). '^1 ^, "^ T 1G(J jiHAL I'Iuh'khty statu tks. [l{.S.ti i(f t.h«' Court wlu«r»'in tin- inotM-fMlingi iire taken, (.r (if h.IuiIki tlmrfof ; |)n>vi(lf«l that hiu-Ii nalo Ik' eoiiMiih-rcd l>y tlip unii Court or .TikIk*' inorfiulviintik^^foiiH to tlif partii-M intcreNti'il : Liii no |)r(io«4««'< hIihII )»< tukni under tliin Ai-t until une wm next iiftor the dcci'iiw of tlu' tcdtntor or jmrty dyiiiff inti-xtitii-, in wlioni till' lundM or <-Httitf in lands to U- ho pitrtitioncd iir^dH niiiy Ih' vtHttHl. H. S. (). 1S77, c 1<»1, h. S. " All If jHii'l 1/ I iittrvsti'il )itii If j\U' ('/v7v*'.' v Kenvns indicates that it is possible for her tt) proceed I'm partition also, but not in all cases, and in fact not in tlmi case. Why should these men be brought in and coinpelli i to .sutler partition or .sale, when dower can be assi;;nc(l ' 1' this absolute rioht of a dowre.ss to partition existoil «. should have had widows conun;^ i" *>^"<^ askin»• 1'i:tith>.\ id no\\i!i:ssKs. 1()< (ksires it, aiul she may be thus left to initiate fresh pro- ctr'liii;,'H ill any way she pleases." |'rr;;uson, -1. — " I aj^ree in the remarks wliich have been just iiiiule. I retain the opinion I expi-essc<;{),h1«„^. 4!l, /,()>,-. ■f ! ! 1 ■ \ , J 1 S^ if ■ '- ' ' 1 ii: I 1G8 J{EAL PROPERTY STATUTES. [R.s.o. samo cHUse operates as a bar to the furtlier inaintoiiaiici; of these }n-oceedin<^a." Tlie application was refused with costs. M<>t'tfi'J(/i'('s of nvdi rilled itttrrcstM: — In Lojiloiilp v Sramen (f)), the appellant was first niortya^^ee of S.>, undivided sixth interest. " Laplante's bill prayed for pay- ment of his niorf^afife debt, and in default for a ])artiti<)ii or sale of the niort^ajjed premises. He had in fact no lociiH sl((tidi to file such a bill and that dithculty beiii;' noticed at the hearin*^, one of the tenants in coiiiiikhi Benjamin Sanderson Seamen, was added as a co-plaintiit and a decree ordinarily made in suits for partition \v.;s made in this case, directinjj the in(|uiry whether a partitim or sale would be most foi* the interest of the parties. . . It would have been better if Laplante's bill had been
  • - mis.sed. He was, I take it, allowed to remain a party to tlu' suit in order to save the necessity of another suit liy liiiiiti' realize his morto;ajje debt, and in ordt'r to his beiiiif paiijont of the pi-oceeds of the contemplated sale. Takini; tliat tn l)e so, he was not the party to intervene actively in tli' proceedinj^s in relation to partition or sale. Propi'ily, lii- position was to leave the conduct of the sale to l?tiijaiiiiii S. Seamen, the tenant in common with the defendants, and to intervene only when there was money in court to U dividiMl." SqiKtllrvs on Ci'Oirn Lands: — "The deoeasfd wji- simply allowed to live on the piemises in(iuestion: he lial no pre-emptive rij^ht, nor hasthe(yrown recojjni/ed in any way his claim. If partition be jfranted here, any s(|uatt(r^ heirs nuiy come to the court and ask for jiai'tition. TIki'' must b(^ some estate or intei'est to warrant the intfrl't ivmv of the court ; and that not bi'in;,' slu!wn here, the bill mti^' be dismissed with costs. The C'rown can, withont the assistance of this court, determine what is ri^ht to ln' il"i' (.'/) s A. K. .5.->7 (imi). ■("•^•% (•ill.. 104.] T/-:\A.yrs turn ufk. \m lu'tweoii, n(»t only the C'rown and the parties, l)ut between the piiitics rt'si)ectively " (A)- A similar view was taken ill tlio cjise of a deceased locatee ol" unpatentivl land (j). Tnnnifs for I'ifc :—'' daskUl v. (,'iis/,;il, (] Sim. 043, (Ictonnineii that a tenant for life niay have a partition ; mill whore there is a right to a partition there may he a li^lit to a sale, as the court shall determine " (_/" ). Trii'^lees for sale : — " It is i,)lain, I think, that the plain- titl" liein^f a trustee for sale only, is not in a position to (k'Uiund and have a partition " (/.). hf juirt'iiioit h) fhc nature of sj)eci/ii' pcr/oruutnrc : — li nil ;i"rt'ement for the division of lands would not he (Hileied to he specitieally performed in favor of the plaintiff" he ouinot ^jet a partition on the lines f»f that a|^ret;inent. "The |>laiiititt' asks for a partitioti of the real estate, in aeonrdaiu'c with the tei'ms of an aij,'reenient mention«'d in till' liil!. This is tantamomit to asking- a speeitie p«'r- I'lMiiiiiiice of the agreement. It is entirely plain that this ciiiiiiiit 111' granted " {I,'). Miijl flic ti fx'filioii: — There are at least thr»!e possible ihimIcs of invoking the a.ssistance of the High (,'ouit in iimttfis i)f partition, which modes wr may emniierate in the unler (if their introiluetion into this I'l-ovinee. I. Hy a suit coiiimenced hy tiling a petition as under this Act: liitriMliictd l)v 2 Wm. IV. c. :{r), in IN.S2: 11. Hv a hill in Chancerv, (now a writ of sunuiions in till" High ('(Mut): introducetl hy IS \' U \ . e. .')(), in iSoO; mil III. My motioji under Consolidati'd IJulr !lS!t; intro- iliu'.'il hy (Jeneral Order (ilO, in IS7!». I'll Uliike, V.C, in .IcnkiiiH v. Mm-tiii, •_'<»« ir. (;i;{ (l>7;il. 10 .Mii'll V. Wfir, -JJ (ir. |iiMlS77). (.)■) Liilor V. Liilnr, It I'. I!. 4.V» (lss;{). .S,r fiirtlo r, >. r.i, iii/r/'/:/{Ty .s/wrcr/.s. [K.s.o. I. J'ct'dlon: — "The pr'iceedings in the suit appear to have been conitnenced in tlie aKiud uuiij by a petition I'm partition" (/>. A petition, then, was the usual way of askinj;' partition, l)efore what is now Rule O.Sl) came into coinnion use. While proceedings by petition have soiih^ a«lvanta<^e {*'. v. liiniirUo {n), where Hhikr V.C, says: "I do no'. thiidv that this is a case for tin opei'atioM of ' The I'ai'tition .Vet.' This Act isonly intendci to apply to simple ca.ses whei'e some connnon title in tli'' petitioner and respondi-nts is admitted, and tlif m\\ i(U«'stion is the extent of the intinvsts of the various J)!Utit■^ The ol)j('ct of an application for the allowance of the petition is to re(|uir»> the petitioner to shew that he \v;i> entitled to parti tioti before the case is referred to tin -Master to ascertain the ani«>unt of his share. It ise.s.-'.ontial IS (0 .FiMikiiiK V. .T.'iikiiiK, 11 A. R. >X] (ISHJ) : tli.- iM'titii.ii was fil.il in l^?' {i,i) ;» V.-M. & It. 10.-. (1S>4). I'D L'f. rciitliiiid V. (^kimnjrtnii, ;i .Myl. \ C. 24'.t (ls:{7). (u) (iP. K. 14.'i(lS7l). m ,>»''>'). Wliile there are not wanting; instances of partition |tn»i'('edin^s beij;un in Chancery by petition (7), still by fai- tilt' nrcater nuntbcr of partition suits contained in our Cliaiicery repor -■>!>! 'ar to have been ctunnienced by bill. Tin- Court of Chancery, moreover, seems to have been of opinion that it container "'Ihe Partition Act " could possibly do, in tilt' way of partition, and conse(iuently wt^ tind not a ^rit'at many references to the Act in our reports of Chancci y cjujcs. At the same time, whenever the Court of Chancery flifl considei- the Act, it endeavoured to harmonize the pro- ctiliue under the Act with the court's own well tried iiutlinds. As expressed by Esten, V.C. : "The couit will use its own machinerv for carr\in'f the |iuriM)S('s of the Act into efl'eet, so far as possible c< insistently with the ex})ress dii'ections of the Act, of which the |'i()\ isions are somewhat sin<,adar. and do not appear to have Ipciii necessary or to have effected an^' improvement in the inactice, so far as courts of opiity are concerned ' (/■). ( /') Cf. 3ii V. (■. 3;{, s. ;«. (7) '•'/. li< Foster, 1 Cli.v. Cli. KM. (r) /;, F.wttT, 1 Chy. Cli. I(t4. m (■ If ' ,r >*! 4 \ ^. it,;- 'I.. !■: 172 «fc'/lL PIUWERTY STATUTK.^. IK.S.(| TIjc result of tliis atteinpt to lianuonl^e the procedures iiiij^ht Hometiines rt'.sult in the Master or person entrusted with the macliiner}' of the conrt takinj^ both procofhutH siiiiPltaneously (n). Since "The Judicature Act," cf coiirse, the oM inetliuil of proceeding by Itill is superseded by the proeeediny; ly writ of auininons in the Hi^h Court. Jt is undoubteillv oj)en to any one to bej^in ])artition ])roceedinj;s l»y a writ (if summons, althou;^Ij, as we shall see (0, he will not In- allowed the I'xtra costs incurred by that expensive nietliml if proceeding for partition inider rule !).S!) could have lieeii I * taken. It ivmains to consider what cases are suitable occasions for be^inniiif^ tlie proceedinj^s by writ of summons. It has been mentioned un. i!t(!li. I). :j7;mix«'). (.r) S,, ;«$ A: 37 V. e. (W. (Imp.), h. 'J4 (J) ; cf. H. H. (), 1SS7. c. 14. m. .V.'. ''' unci (7). *w. Ciip. i"il .'^rorrox ushHit ros'soLiDArun itrLK !>y>. 17.} (•\ct](t cliiiins in roHpcct of iiiesno proHts, or arrears of rout, jiiiii iliiiiiii^^es for In-each of contiiict (//): under wlilch rule it li)i:i lieen held that an action to estahlish title to land is ail action for the recovery of land "(c). Such heiiiy the >state of the law, the b«'tter [)lan in cases of disputed lei^al title \v()ul. There may, however, be caaea in which a writ of suininons may he the preferahh> method of connuenciner pnu'i'idiniis for partition. Thus a suit is fretpiently hrou^^lit for administration antl partition. I'nder ordinary circiiiiistances the procedure would he hy motion inider the aiia!ii;;uus rules (Mi.') and !)N!). Hut ciicunistanees niay arise ill which the motion for administration under rule !l(l.') would nut he available. In which case the action for U'liiiiuistratiou would be commenced by writ of sunniions ; aiiil the writ would propei'ly claim partition also. 111. Mill In,, ,i,nln-('. A*. .V.sYy ,— -Wo have the' followin;^ rules which now regulate the practice on this mattei', and wiiich we iiiav here disc\iss : liVi. Atiyiululi pi-rsiiii t'utiilt'il tiiiv jiKljriiifut ornriltr for tlif .Viluli |i:irty piirtitiniK.f ill) fotiitc iiift.v, on s^'|•vin^r (iin- nr iiiitrnof tlu- jhtsohs '"■'>■ ii|'l''.v I'lititliil to :i Hlmrt' iif t'lic t'xtivti' i.f wliicli iDirtitiun is .>.(nij.'lit, Mjisiii- inr Willi ^i II clciir iliiy.s' noticf liiin; \vh)Tiu|Min tln' .liult,'*' or Master ni.'iy ,,i, inilmncVit. iiiiiki' >iicli iirdt'r for partition or naif, or nmcIi otiicr dnltr as f,,i- paiii- iiiay Iw propfr ; and tli«i .MastiT shall tlier«Mi|Miii procci-d in ili.' tlon. Ii'iixt i'\piiisi\'f and most t'\|H>ditioiis nianniT, a^(•ll^dill^f t >M- |>ai(l (lilt without •IikI^c'h order. WIh'II after Jiulglllt'llt, liimlsiliscov- criMi in itnotlii'f ci'iintv. pnynirnt of eostn und otlmrwiut), pHwided iilwayu that wlicri- an infant is intcreHtcd in the CHtuto, no onler Hhall be iiiiisn. 17.") " ]il(ii», for tlic plaintiff. It has been underMtood that the (u'lunal Order is inteiulud to apply to .simple cases only, ,is whtro the parties consent to the ordiir, or where no donbt exists, and that where a contest snch »is is involved, wIu'It ii (luestion of title airises, as in this cjise, a hill nmst he tiled, i'lie cast of Ileifirtxtif v. Sircivrii/fif, M V. H. 70, woidd se»'ni to support this view : and an analoi,'y nii<,jht he found in the old practice of reipiirin^ a hill instead of a Chandlers a|>]»li(';ition in adverse suits in all hut sinij)le cases. " HIake, \^C., made the order asked, reservin;j^ costs of tin- priK't('din<,'s hefoi'c the Mastt-r, and of the application, until tlu' hearini^ or other disposition of the suit." Ill llr MfMillon (r), an application under (J. O. Ti+Owas luiidi' la-l'ijre the Master at Cornwall. The defendant, who >i(TU|)i('llS82). ,'td "lli 1 ' •f 17<) A'AM/^ PltiU'KHTY STATUTES. [I{..S.(). TIic words " (»r such, ot/icf onlrr <(s mat/ be iiropn" confer on tho Local Master ample juriatliction to con.sididatf conrtictin;; applications for partition ; an- lands in liru counties, has exceeded his Jui'isdiction. Thus, in Xiri)! v, Alh'iihi/ (I), Robertson, J., says: " Whatever Jurisdiction the local Master has is coni'erred upon him by Order (i-lO— readin<( which in connection with Order ()41, it is clear that if the lands sou<,d»t to be affected lie in more counties than one, the jurisdiction of the local Master does not attach The Master in each countv miiifht have lurisdiction as to the lands in his county; but tl;e object of the Order is to prevent more than one suit beinj; brou^dit, in respect to the same estate, and if bv anv chance more than one order is made, the several suits would l)e consolidated. " 1 cannot bring" my mind to the conclusion as cnutondtil for ))y Mr. Hoskin, that althouj^h the order under consiil eration in this case was void as to the lands in Oxford: it was g()()d as to the lands in Waterloo. { v. Mil.'H, L. K. -'7('ii. 1). ;n.'. (ISSl); I'litti'ii V. (Jiiar.liiiii.s of Kdinontoii, 31 \V. H. 78.5(1S^;{), .111(1 l\\^n!s V. PciRock, L. H. 'S2 Cli. I). •Ji'i (1HS2). Cf. (,'roiik v. Cronk, '•<». S. ;w.' (ISIU); uikI Hiscott V. IWrriim^.r, 4 Gr. 2'M {l6o4), chh« where tructfcs icfusid to m;t, and Court decrewl jmrtition. H.H.i'.a.— 12 m .1 : I '■ ■J ■:\n ■ .■ I m m ' \ s '!f ""^ ' ■' i ■ if;. • r'; 178 7fA\4// PRorKltTY STATUTKS. [H..S.O. ment, which th«i pnrtieH do not intend to uhunflon, sincf Huch a ])artition can neither be enforced nor set aside l.y means of sneh a suit (m). Still there is no reason why uH parties interested shonld not, if they wish to jL,dve the form of law to their voluntary partition, join in such a suit and take partition under it" (/»). The practice was notsD liberal under 2 Will. IV. c. 35. The proceeding liy writ of pai'titiou then in vo<;ue, could not be had where all jj.irtics consented ; which case was regulated by section o ol' tliat Act (o). Hni no pivK'Ppditigs, cfr. : — R. S. O. 1S77, c. 101, s. S, following 32 V. c. 33, s. G, had nix iiumtha instead of ow year, as in the present section. The principle of this provision is discussed in Grant v. Grant (j)) : Hoyd, ('.,— " An administration and partition, or sale, are sou;,'lit \\\ the administrator and some of the next of kin ami heirs at law of an intestate. No special reason is given for applying within six months of the death. It is clearly too soon to apply for administration, under Slater v. Sinter, 3 Chy. Chr. R. 1, and I think the analogy of the Partition Act (R. S. O. c. 101, 8. 8), limiting six months from t\\v death may very well apply to this case tiee Bennett v Bennett, 8 Gr. 446. The policy of the statute should apply to all partition matter's regarding the lands of a person decejused whether testate or intestate. I refuse the application with costs: {see Rowsell v. Morris, L. R. 17 E(i. 20)." As the period in case of suits against an adminis- trator is one year from the death of the intestate {q), it is probable that our Revisors of 18iS7 intended to complete [m) Cf. Moilcy V. Davison, 20 (Jr. !Mi (1S7'2), (n) JfiikiiiK V. Junking, 11 A. R. !»(> (1884). ( thf hnxls, etc. waif he vcntetl : — A nt-at point arose in Fnnii v. Frain (r), wliore the interest of the netitioMi". was a ri;jht to dower; " It is objected at the l)ar that tlie ajiplication for partition is premature, inasmuch as six months had not ehipsed since the death ri ((•(•»•(] iiif^s muter this Act sliall lie entitled in tlie Kntitlingof Cmrt ill which tiiti Himie are institutwl, at . {namiwi evrrif then known jtortii liiiriwi null Irijiil intatc in the Iniiils other than the petitioners) . Where the defendant is not misled by a notice of trial, any tritlin<^ irrcj^ularity therein, as, in this case, the omission of the words " In the matter of partition l)etween " before the phuntift's and defendant's names, in the style of cause, will not entitle defendant to set aside the verdict: and, iire^'ularities of this kind should be objected to promptly, otherwise the Court will not interfere (s). 10. Kvcry i)arty h.ivinfr, at the time of filing the jietition, Kvery i>er- any iiittn st us aforesaid, shall be made a party to the partition «on liavniR IinK)tc(liii);s; and the jxitition shall particularly (h.scril)e the j,i„iii i„. lands sdiiijlit to lie jiartitioned or sold, and shall also set forth made party. the interest of the jietitioner or jietitioners therein, and his, or What peti- tliejr respective place or places of residence and occujiation, and tion shall the HHtate. rights and titles of all parties interested therein in *«* ^"""tl'- ('•) 1'2 P. R. at p. 189 (1887). U) Synioiids V. Symonds, 20 U. C. C. P. 271 (1870). ',\i ^^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I f Ilia i^ IIIU J40 12.2 M 1.8 1-25 1.4 1.6 ■• 6" ► VQ

    -'. 1.37, 8. tition: totally di in this su in our C( i-ule 2o8 " Wliere t infant is good servi clarify th( this direct these prov Jias iKjthir fiealiiig. ('(') Uob. (■»■■) 12 V. (//) K.sten. Cap. 104.] VERIFICATION— INFANTS. 181 the said Courts, a Commissioner for taking affidavits therein, or a Notary Public. R. S. O. 1877, c. 101, s. 11 ; 48 V. .^ 16, 8.1. (2) If in such case there is more than one infant defendant, for whom service is to be made on the official guardian, one copy only need be so served. (3) From the time of such service the official guardian shall become and be the guardian ad litem of the infant unless and until the Court otherwise orders ; and it shall be his dut^ forthwith to attend actively to the interests of the infant in the action, aJid for that purpose to communicate with all projier parties, including the father, or guardian (if any) of the infant, and also the person with whom or under whose care the infant resideis, in case such person is not the infant's father or guardian ; and the guardian is to make such other inquiries and to take such other proceedings as the interests of the infant may require, 44 V. c. 5, Rule 36, part. Verijication : — See ex parte Robinson (iv) as to neces- sity for veritieation. Infants : — It may prevent mistakes to remember that the provisions of " The Act respectinj^ Infants," R. S. O. J. 137, s. 3 {x), have nothing to do with the subject of par- tition: "The twelfth Victoria was passed for a purpose totally different from the object the plaintiffs have in view in this suit, and cannot govern in deciding it " (i/). Sub-sections {2) and (S) : — These sub-sections also occur in our Consolidated Rules as sub-sections (a) and (b) to rule 258, which introduces them with the following : " Where the action is in respect of an estate in which an infant is interested, service on the official guardian shall be good service on the infant defendant." It certainly does not clarify the meaning of the present section, to have omitted this direction as to service on infants, and to have appended these provisions as sub-sections (2) and (3) to a section that has nothing to do with the matter \\ ith which they are dealing. (»•) Hob. & Jos. 25ri6. W 12V.C. 72. • • (,'/) Esten, V.C, in Bennett v. Bennett, 8 Gr. 436, (1860), a partition suit. ''A .1-1 f' > H ^u 5!^ ^. ■ I 4 182 REAL PROPERTY STATUTES. [R.8.0. In Wedtherhead v. Weatherhead (z), which was a par- tition suit, an application was made for an order allowing substitutional service of the bill on the official guardian of an infant defendant, the infant beinr/ I'esident without the jurisdiction of the court, and no provision being made for such a case under Rule 36, 0. J. A. {i.e. the present section). The order was made on the ground of saving expense, tlie share of the infant only amounting to $40 {a). In proceedings for partition, the infants should be joined as defendants not plaintiffs. Thus, in Brown v. Broivii{b), a partition suit under G. O. 640 (now C. R. 989) the infants were joined as plaintiffs and the lands sold by auction. Proudfoot, J. — " held that the infants v\ ere improperly joined as plaintiffs : that they should have been defendants and represented by the official guardian ; and directed a reference to the Master to fix the guardian's commission as if he had been engaged in the suit from the beginning. On consent of the guardian, it was ordered that the proceedings taken for sale, if they proved to be regular, should stand ; but this not to be a precedent." In case party inter- ested be an infant. 12. In case any of the parties interested, other than a petitioner by guardian, is an infant, and the petition is nut served on the official guardian under the preceding section, and in case it is proved to tbe satisfaction of a Court or a Judge that at least fourteen days' notice has been served on the infant, if resident in the Province of Ontario, or otherwise served as herein- after provided, that proceedings will be taken under this Act for the partition or sale of the lands, and that the Court or Judge will be applied to, at the time and place specified in the notice, to apix>int a guardian to represent the infant in the proceedings, the Court or Judge shall and may thereupon, whether the said infant resides within or without the Province, appoint a suit- able and disinterested person to be a guardian for the infant for the special purpose of taking charge of the interests of the infant in the proceedings upon the petition. R. S. 0. 1877, c. 101, s. 12. kl Ayr {z) 9 P. R. 96 (1881). (a) Gf. Re Lane, 9 P. R. 251 (1882), examination of infant defendants out of jurisdiction di8|)ensed with. (6) 9 P. R. .,45(1882). »:»:,(.. .f't". Cap. 104.] GUARDIANS TO REPRESENT INFANTS. 183 13. Every guardian appointed under the preceding section. Guardians \m\tm lie is the official guardian, shall, before entering upon his to enter into duties, execute to the real representative of the county wherein gn-ptiL^' the estate, or any part thereof, ia situate, by his own name of of office as Surrogate Judge and real representative for the cduntv, and his successor.s in office, and according to the term of the rule or order appointing the guardian, a bond in such jjenalty, ami with hucIi sureties as the Court in which such proceedings ure to be taken, or a Judge thereof presiding in Chambers, directs, and to be allowed by an officer of the Court to be named in tlie order, ujxm i)roper proof of the sufficiency thereof, conditioned fur the faithful discharge of the trust committed to the guardian, and to render a just and true account of his guar- dianship when refpiired by the Court or a Judge thereof, and \\\m\ sucli further conditions as the Court or Judge may direct ; and no proceedings shall be taken upon the petition until tiie hind has been filed in the office wherein the jietition has been tiled. K. S. O. 1877, c. 101, s. 13 ; 50 V. c. 8, Sched. 14. After the execution and filing of the bond, the guardian shall represent the infant in the i)roceedings upon the petition ; and his acts in relation thereto shall be binding on the infant, and shall be as valid as if done by the infant after having arrived at full age. R. S. O. 1877, c. 101, s. 14. An unequal partition obtained in a County Court against a minor and feme coverte through the contrivance of the co-tenant, the gross laches of ohe guardian ad litem, ami the misapprehension of the Referee (c) as to the extent of liis duty and power, was held not binding. The minor, on coining of age, filed a bill for a new partition, and a decree was made accordingly (d). Guardians to represent infants. 15. It shall be necessary that everything be proved against the infant, and it shall not be competent for a guardian to give any consent on behalf of an infant, but the Court or Judge may, on behalf of an infant, where it is deemed advisable in the interest of the infant, consent to such proceeding. R, S. O. 1877, c. 101, s. 15. Proof against and consent on behalf of infant. Consent by giuirdian: — That which is enacted by the present section was not always the law as to the power of a guardian to give consent on behalf of an infant. Thus, (f-) Appointed under C. S, U. C. c. 86, s. 17, which section has be repealed . (d) Merritt v. Shaw, 15 Or. 321 (1808). ^h il Am ! ' k i I V I \fm m III i r " 1' Si Ml m Wi 184 ItEAL PROPERTY STATUTES. [R. S. 0. in Re Unher (e) Robinson, C.J., speaking of a partition suit where all parties gave consent, said : " The guardian of the infant child of one of the devisees is competent, I conceive, under the 9th clause (/) to concur in the consent, on the part of the infant." The present section was enacted in 1873 by 36 V. c. 16, s. 6. Consent on behalf of adult : — The genex'al rule is that the client is bound, as between him and his opponent, by any act which the attorney does in the regular course of practice, and without fraud or collusion, however inju- dicious that act may be. But where in a partition suit a person not a solicitor (or clerk to a solicitor in the cause) but acting for the defendant gave a consent in good faith, but inconsiderately and without the knowledp- of the defendant, it was held that such a consent .night he relieved against, on an application being made in Chambers for that purpose (g). Where the adult co-heirs agreed to a partition and agreed to execute quit-claims to carry it out as soon as the minors came of age and united therein, but the minors, on coming of age refused to adopt the agreement, the agree- ment was held not binding on any of the parties ; and the Court decreed a partition (h). Where, by the will of the testator, the whole estate (consisting largely of personalty) was to be divided among the children on the youngest attaining twenty -one, it was held that until the youngest attained twenty-one, the adult parties were not entitled to call for a partition or distri- bution of the property (i). (e) 1 U. C. R. 527 (184rj). (/) 2 Will. IV. c. 35. s. i), represented by present s. 14. {g) Rolfe V. Crote, 1 Chy. Ch. 308 (1865). (h) Wood V. Wood, 16 Gr. 471 (186i»). (i) Murphy v. Mason, 5S2 Gr. 405 (1875). S,^ , t^T'Sk Cup. 104.] APPOIXTMEXT OF aUARDlAXS. 185 Appoint- ment of guardian to estate of Twrson un- heard of for tlir«e years. 16. If any party interested in the estate resiiecting which nriiceccUng.s are, or are proiwsed to be, tak(^n under this Act, has lint been heard of for three years or upwards, and it is a matter of uncertainty whether such party is living or dead, it shall bu competent for a Judge to appoint a suitable and disin- terested ixTson to be a guardian, for the special purpose of taking charge of the interest of the said party and of those who, ill ilie event of his being dead, are entitled to his share or interest in the estate. R. S. O. 1877, c. 101, s. 16. 17. The application may be made by any one interested in ' Ap|)lication the said estate, and the Judge making the appointment may t^'' ivppoint give such directions as may be neceesar^' for the execution of **^ ' ' s\irticient bond, wliich shall be entered into by the guardian so apiMiinted, with sureties in the manner provided by section 13 of this Act. 11. S. O. 1877, c. 101, s. 17. Powers of guardian. Power of the Court to deal with the estate. 18. After the execution and filing of the bond, the guardian shall, in tlie ])roceeding3, represent the said party, and those who, should he be dead, are entitled to his share or interest in the estate, and whether they, or any of them, are infants or otlierwise under disability ; and his acts in relation to such share or interest shall be binding on such party, and all others claiming, or entitled to claim, under or through him, and shall be as valid as if done by him or them. R. S. O. 1877, c. 101, s. IS. 19. It shall be competent for the Court in which the proceed- ings are taken, upon proof of such long continued absence of the said i)arty as affords reasonable ground for believing him to be dead, ui)on the application of the guardian, or any one interested in the estate represented by the guardian, to deal with the estate or interest of such party, or the proceeds thereof, and order the payment of the proceeds, or the income or produce thereof, to the i)er»on who, in the event of the said party being regarded as dead, appears entitled to the same. R. S. 0. 1877, n. 101, s. 1!». The Judicature Act, li. S. O. 1887, c. 44, contains tlie followinfj provision : 28. In any action or proceeding in the High Court for par- tition or sale of the estate of joint tenants, tenants in common or co-parceners, where any of the i)ersons interested in the lan / : i h 186 HEAL PROPERTY STATUTES. [R. H. 0. vesting order made in any such action or proceeding wliall Imve the same effect as a deed or vesting order made in proceedings under the said Act. R. S. O. 1877, c 40, h. 52 ; 44 V. c. 5 8. 9 (1). 20. Any guardian appointed under this Act shall l* at liberty to apply to the Court from time to time, for direction and guidance in the management of the estate, and for com- peitsation for his services in connection therewith ; and tlie Court, or Judge may make all such orders, and give siicii directions in reference thereto, as appear just. R. 8. O. If77, e. 101, s. 20. " And for compensation, etc." see notes under section 55 infra. Guardian may apply to the Court for guid- ance. Incumbran- cers may be made par- ties after proceedings commenced. Proviso. 21. (1) It shall not bo compulsory, in the first instance, to make any person having a lien, on the estate, or any i)art thereof, by decree, mortgage or otherwise, a party to the pro- ceedings, but the petitioner may make such creditor a luirty, and, in such case, the petition shall se ^ forth the nature of the lien or incumbrance ; and if the lien or incumbrance is on the undivided interest or estate t)f any of the parties to tiie petition, it shall be a lien only on the share of such party ; and such share or estate as the case may be, shall be first charged with its just proportion of the costs of the proceedings .n partition in prefer- ence to any such lien. (2) If the person having the lien is not made a party to the proceedings, his lien shall not be impaired or affected thereby. R. S. O. 1877, c. 101, s. 21. In Macdotujall v. Macdougall (j), Vankoughnet, C, says : " If a mortgage be created by the owner of the entire estate, partition can be had subject to that irortgage; but, if the owner of an undivided interest mortgage his legal estate in it, his mortgage must, I think, be before the Court. He must join in the conveyance ; any extra expense occasioned by this should be borne by the mortgagor {h The mortgagor has chosen to put the legal estate out of him. Surely w^hen he seeks partition he must bring that legal estate before the Court for the benefit and protection of his co-tenants whom he seeks to bind." U) 14 Gr. 267 (1868). (A) Citing Cornish v. Gest, 2 Cox. 27. • mii Cap. 104.] OBJECT OF SECTION 2S. 187 How peti- tion served when all parties in Ontario. 22. (1) In cases where all the parties interented or known to l)e interested in tlie estate respecting? which the jiroceedings are taken under this Act, are residents, or liapijen, for the time being, to be ill tiie Province, a copy of the petition, with notice that the same will be presented to the Court wherein tlie proceed- ings are taken, or a Judge thereof presiding in Chambers, on some day and hour, to be named therein, shall be personally served thirty clear days previous to the day of presenting the same as aforesaid, on all the parties, whether infants or not, resi- dent (jr being as aforesaid in the Province, who are interested in the lands and estate in question, or on any duly authorized agent or attorney of any of the parties interested in the estate. ('.') Every such notice shall be addressed to all the jmrtiea interested who are known, and generally to all others who are unknown, having or claiming any interest in the estate, or whom it may concern. (3) It shall not be necessary to serve the petition or notice up()n a guardian appointed as aforesaid, if the same has been previously served upon the infant for whom the guardian has Ijeen appointed. R. S. 0. 1877, c. 101, s. 22. 23. (1) If any parties having such interest are unknown, or if known reside out of the Province, or cannot be found therein, and have no known attorney or agent residing therein, the petition and notice maybe served upon them, or any of them, by jmblioa- tion of a notice which shall set forth the names of the plaintiffs •and defendants, and shall be directed to the defendants and to all unknown jwrsons having or cliviming any interest in the land, and describing it as it is described in the petition, and stating the Court to which, and the time and place when and where, the I'etition will be presented, and calling upon all persons tlien and there to apjwar and state what claim.-^, if any, they have to tlie land, and stating that in default of their so appearing the matter will be proceeded with in their absence . (2) The form of the notice shall be settled in each case by the Judge befui-e j)ublication thereof. R. S. 0, 1877, c. 101, s. 23. 0})jct't of section 23 : — The present section 23 is from 32 V. c. 3.S, R. 14 (as amended bj' 36 V. e. 16, s. 1) and was introduced in 1869. It was perhaps intended to simplify the law as to service, as laid down in Tryon v. Peei' (I), where Vankoughnet, V.C., said : " I think the other objec- tion for want of parties must also prevail. It appeal's that there are certain infant children of a Mrs. Knapp deceased, (0 13 Gr. 316(1870). How jjeti- tion served when par- ties are un- known, or reside abroad, etc. m I ^ t % . -u. 188 liKAL J'ROl'Kftry STATUTES. [K.S.O. who are entitled as co-heirs in the same degree with the plaintiff", and they apparently are not made parties to the bill, although their father is, the plaintiff excusintj Jnniself from niakin<:f them parties by a statement ' that they reside with or near their father in the State of Iowa, in the United States of America, which is the most precise infor- mation of their place of residence your complainant has been able to obtain, although he has used due diligence ami made inquiry to ascertain the same.' It does not appear from this statement that there is any difficulty in servin;^ thesle infants. Their father is made a party, and if he can be served they ' who reside with or near him,' can lie served. It is a general rule that all parties interested in the subject matter of a suit should be brought before the the court and the plaintiff here has not brought these infants within any of the exceptions to that rule, on which the court excuses the absence of parties." Publication of notice in Gazette and newspapers. Notice to be pf)sted on court house and school- house. Publication of notice equivalent to personal service. Service may be made upon solici- tor or agent in Ontario, 24. The notice shall be published in tlie Ontario Gazette for four weffks before the presentation of the petition, and in a \)&\n published in the county within wliich tlie lands lie, and if tliere is no such paper, then in a newspaper published in tiie cityiif Toronto once in each week for four weeks before the time when the petition is to be presented. R. S. O. 1877, c. 101, s. 2i. 26. A copy of the notice shall be put up at or near the dour of the court house of the county wherein the lands lie more than four weeks before such time, and shall at the same time !» put up at the school-house of the section or school division within which the land is situate. R. S. O. 1877, c. 101, s, 25. 26. Such publication, uixjn proof thereof by affidavit, shall to all intents and purposes be equivalent to personal service \\\m all or any such unknown or absent parties. R. S. 0. Ifi", c. 101, s. 26. 27. The petition and notice may he personally served, without such publication, on any known absent party or upon his solicitor or agent, if he has any, residing in Ontario, thirty clear (iiys previous to the presentation thereof, and the reasonable costs of serving any absent party shall be taxable as costs of the jiro- ceedings. R. S. O. 1877, c. 101, s. 27. , «'^% CB1..104.] ALLOWAyVE 07' rKTITJOX. 189 38. Uiwn the preHentation of a petition, and uiKin Huch pnxif Allowance of Berviw or publication tliereof, with the notice as aforesaid, ^^ petition, and Neen filed as afore- said, and up(m exhibiting prima facie proof of his or their title, and upon such statement or affidavit as may Ik^ necesaiiry. apiily to the Court or a Judge in Chambers to finally determine any issues or questions raised by any party or parties inter* ft. ;1 ; or for an order directing the trial of any issues of fact that may have been raised by the j)leadiiigs ; or that a special case may be stated for the opinion of the Court in which the petition has been filed ; or both for the triiU of an issue of fact or law ; or for any other order that the Court or a Judge may think proper under the circumstances. R. S. O. 1877, c. 101, 8. 32. Pleading : — A respondent may demur in). Issues to be 33. All issues joined and ordered to be tried by the Court or tried j^ jury, shall be tried by the Court or jury, in the same manner 1 eon. ^^ other issues are determined, on a record made uji of the petition and of the defence pleaded thereto ; and the like pro- ceedings shall be had thereupon in every resjHiut as to new trials or amendments, and any other imrticulara as in ordinary actions ; and any special case so ordered as aforesaid may be made up and proceeded upon, inclusive of signing judgment thereon, in like manner as the law directs for the practice as to siiecial cases. R. S. O. 1877, c. 101,8. :)3. Issues in partition suits under this and tlie preceilinj,^ section were held to be witliin the scope of section 17, sub- section 2 of " The Law Reform Act, 1868 " [o), so tluit such issues in the County Court miglit formerly have been tried at any sittings of assize, or nisi priuH for the county without an order permitting the same {]i). But the law has been changed on this subject, so that now, the order of a (n) Cronk v. Cronk, 1 U. C. R. 471 (1841). (o) 32 V. c. 0, 8. 17 (2). (p) Symonds v. Symonds, 20 U. C.C. P. 271 (1870), ilf'*^'^. * Crtji. 104.] ^'^^f'f'^-JlKFKJik'^CK.S. in lor tl.o sittincrs of tJ.o Hi.], cL'iT.r''^' '""'' >««"«« " *^''*'' countx' town (n) l;.Tt,t,..n ; un.l th..rHu,K,n un.i „„„„ .wV^^ T" J"''*^'>n-"t „f """"iT, etc. 'I^'y.^ writfr, notico thereof. i„ JnnelT '"' '""'"'^' «f'^'<"' ^'- "r. .;r .nentioned i„ the nUt and f. n "'" " '^'"'«''" ^'"• P~J ,„ the ,na„„er in the mvid h^' "^^ •^'''^*'""« -^''^J 1H77, u. 10], H. 34. ««ctions provided. R. «s. o. 35. (I) The pHtitionersshill ivJ, n. wl.0 have been called u.^n ^ l' ^ ''''?^ ""^ ^^^ «ther parties P ..• and answered evhil.,> i \''l'l>^^r and answer have a,. . J'^^tdumev^ ,fM ,.'''"''»«" /'"'''ci)r(x,ff.rf I • '. , ^''"■I'H-ared to prove I t e apphcation for the order for I'tft L ""■- "''^ "' '^"^ "''"e ''*^^' «'"• 'as l..en ordered or a H,..ei„ case s tat. , ' ' r"' " '" '*''"'*' '" ^««t tlH- final .letennination of the quli^! fT ''^"'■''""■^' »'"'" "I'on «;^ered to l,e tried a« afore lid or ! ' " ''^'' ^'^'^"J') «" f '-aul the Court or a J^t i 'rr '^"*^'''' "^ ^I^^ ™^^^^^ and thereby order tho real r,.„ J . *''® ''*''t'e« concerned ''ft- lirecte,!, acoordi„;; s rT^^^ 7 *" ""--d as hS' a">M«.rties.h„..er,,da'havrntSn'^^^ (2) The Court or T,„l. "'"^-^n 'ascertained. Court or JudL'e in t \" '"''^' '^ '* «''«'»« expedient t .^ • Title-—" T] "-cference. ft.-.st »oei„g t|„t t,,, , ■ ^^™'' "'^y »ouM not bo without "•V "» to entitle tl,e ■■elativTof H " ,?''"'*'« '" ««!, a Pl»'"tift; p«-l,aps, „e„,I n7? "" ''"" Wood to it. The «""».■: but when 1, 1 Ij;"''" ^"' "'" '"» title i„ '^ Jtff'-mtce,- Tl- . ' ^"•"'' prove one "(rt •■"•■po^^oftheictV rI" '"""'"■""'•^ *» ^««t tl°e <"-.o« J ^''^^™--" partition are not • 'J. 188,, c. 44, s. 97. \n *ankoughnet C • t ';f j-I^/'iTh^ vlL. ■} ' 192 REAL PROPERTY STATUTES, [R. S. 0. now made to the " rral representative " (Surrogate Judge) as such, but to the Master (who may or may not be the Surrogate Judge) {t). This was both the practice in the Court of Chancery in partition matters, and is expressly provided in C. R. 989 {u). References, to whom and how conducted : — Ordinarily, the reference may be made to the Local Master of the county in which the lands are situate. But in Re Arnott- Ghatterton v. Ghatterton (v), where the lands were iu Northumberland, but lay nearer to Whitby (county town of Ontario) than to Cobourg (county town of Northumber- land), and the reference could be held with more convenience and less expense to all parties at Whitby, an application was granted for an order referring to the Master at Whitby, and it was held that such application was properly made to a Judge in Chambers and not to the Referee, under general order 640 (now C. R. 989). In Re Roger's (w), where there was a reference under G. O. 640, and a question arose as to the validity of a lease and also as to its fraudulent alteration it was held that the tribunal known as the " Master's Office " had no jurisdiction to try these questions, and the reference was adjourned until the questions should be determined. C. R. 73 gives the Master considerable latitude as to the way in which he shall conduct a reference. Tlius in McKay v. Keefer {x), "the Master appointed two indift'ereut persons, being, as it is said, and not denied, skilled or possessing special knowledge on such subjects, who examined the property and proposed a plan of partition. He then caused one of these, and I do not know but the (t) &.. R. S. O. 1877, c. 44, s. 125. («) See notes to section 8, supra. (v) 8 P. R. 3!) (1879). (w) 11 P. R. 90 (1885). (x) 12 P. R. 256 (1887), Ferguson, J. Cap. 1(M.J "-"•^ "'''■'">'''■ "^^BBBXCE, Other as well, to be examined hefT^i^ on the evidence he adopted or coneludld"" ""," '''""^- ""d mode of partition, and, aa I undent "d """■ '"'>»'»•=■ »'■ 7 ''f ""'■" ■='"> '«'' partition a*t' '■ """^ ^'^P"''^ '» of such partition. He did not ret.^,'''''^"' ""^ «haraetor pei-sona and talie the .cheme devilld h, *^ """"^ '" ">"»« hh, mode of obtaining. undorTh ^,*'"""' ■»" "dopted urther evidence and ^^^ inf .l^i^ ^h". ='-"»»'«-: h.m to exe«ise hia own iud does ute „ different cou.^e of proee^'"' f ''"'"^'- ^ ™b.ti. "en, and I am not preparldT ^' *''°'" ">"' ordinarily ;" in thi. instance';:":',^: -^ ^' ^^"-' "- Wa^tt provision in the order," " "'" "waning of thi,, -R/^-e^c. of question of tith. ■ , "«■» of title, raised 'beltrrP"««°"«»it, a *CKled at the hearing and wiH ?. ""-d'^fondants, was Master (z). ' ""^ without being referred to the "^Pf'l from Master's reuort ■ Tu from the report of the Jw! r?"''" ""'•>' '^'^ »" appeal »l..oi. each party i^ intei'^^d Ta*."'""" "'^ P^portio"' t 'J^^'^^e t(;,7Ao,,^ reference tn ft , ^ t'"nk m a case Jike thi. !^ ^^P^^sentative, savinc • '""^^ ^^ ^o save e.,^^:':^::^ 'T ^^ ^" p-^- (.i.NWcR.,, "^^^"^P--bJe, and when the . "°'«'^^n-8:!::;a,^« «- m (186f,). As to disputed .H • f*^^S«r.6«(i8e,; ■'"''' '--380 (1«64). ('■J 8 «r. 4i(> (l.S(J0). "B.P.S 13 ■■i m 194 REAL PROPERTY STATUTES. [R. S. 0. facts are so distinctly shewn upon the evidence, there is not any necessity for any other proceeding tlian the usual reference to the Master." Order on real repre- sentative to make parti- tion. 36. The Court or Judge shall, by the order of partition in the last section mentioned, direct the real representative to make the partition so adjudsred according to the respective rights and interests of the parties, as the same may have been ascertained and determined as aforesaid ; and in the order the Court or the .fudge shall designate the parts or shares which remain undivided for the owners whose interests are imknown and not ascertained ; and the real representative shall forthwith proceed to make such partition, according to the judgment of the Court or Judge, unless it apiiears to him that the partition cannot he made without i)rejudice to the owners of the estate, in which case he shall make a return of such fact to the Court in writing under his hand, R. S. O. 1877. c 101, s. 36. Formerly there was a provision (C. S. U. C. c. 86, s. 17) that parties consenting to a partition might appoint arbi- trators to make the partition. This provision is no longer extant ; probably because it was held in a certain case (d) where one of the arbitrators refused to act, that the court could not interfere, not having any original or common law jurisdiction, and the case which had arisen not being pro- vided for in the Act. How parti- tion shall be made. Report and return thereon. 37. In making the partition the real representative shall divide the real estate and allot the several portions and shares thereof to the respective parties so adjudged as aforesaid, desig- nating the several shares by posts, stones, or other jwnnanent monuments ; and he may employ a surveyor to assist him therein ; and he shall make or cause to be made a tme and accurate plan or map and field book of the land, and shall describe particularly the metes and bounds of the same ; and he shall return to the Court or Judge having cognizance of the \m>- ceedings, the plan or map, field book and description, and shall rei)ort to the Court or Judge in writing the manner in which hi- has divided the estate, and the share allotted tf) each party, with the quantity, courses and distances of the boundaries of each share, and a description of tlie posts, stones or other monument-. together with an account of his fees, which fees together witii any charges for surveys, shall be ascertained and allowed by the Court or Judge ; and the amount shall be paid by the petiticnin^, and shall be allowed to them as part of the costs to be U\n\ against the estate. R, S. 0. 1877, c. 101, s. 37. %. €ai). 104.] EFFECT OF FINAL JUDGMENT. 196 Report to be confirmed or remitted for amendment. Effect of confirma- tion. 38. The rejwrt shall be proved by affidavit before a notary Report to be public or a commissioner for taking affidavits, and shall be filed Proved, etc. ill the Court ; and a copy thereof, after the report is confirmed by the Court, and certified under the hand of the registrar or clerk of the Court, and under the seal of the Court, shall be reifistered in the registry office of the registry division in which the estcto is situate, on the production of the copy to the regis- trar. R. 8. O. 1877, c. 101, s. 38 ; 48 V. o. Ifl, s. 1. 39. Upon the return of the report, the Court or a Judge in Chambers may confirm the same, or remit the same back to the real representative for amendment in any particular or particu- lars in which there is manifest error ; and upon a final confirma- tion a .Judge's order may be granted and obtained, confirming in flue fonn the said report ; and the order shall be binding and com.lusive on all known parties named in the petition, and where publication has been made as aforesaid, then also upon all unknown and absent parties, and all persons claiming from or through them ; but the judgment shall not affect any person or persons having claims as tenants, tenants in dower, or by the curtesy, or for life, to the premises which form the subject of the partition, nor any person not named in the petition, either originally or by amendment, nor any unknown person, where theie has not been publication as aforesaid. R. S. O. 1877, c. 101, s. 3remi.ses sold, by a covenant or bond of the purchaser, and by such other security as the Court or Judge aforesaid may prescribe in the order or direct. R. S. O. 1877, c. 101, s. 40. [Sci Cap. lOS, ss. 54-.58, as to preference of purchase ijiren to the penon vho would have hceii heir-at-law prior to 1st Jan., 1S5^.] Reference may he to real representative {I): — "It would seem to be proper; if desirable, to refer the question of (i) IChy. Ch. 3fw(1851). (k) i.e. the present section 39. (I) See notes to section 3'), supra. m m i.f 1 Hi ^, f. '\/i^ if /i fr ¥^ \m 198 REAL PROPEBfY STATUTES. [R. S. 0. pai'tition oi* sale to the real representative. The real repre- sentative is to make the sale if it be ordered. No power of sale is expressly given except upon the report of the real representative (m) ; but it would appear that the Court can order a sale in the first instance or upon the report of the real representative, if, on an order for partition, he sliould think a partition unadvisable, and should so report to the Court. I am not at present satisfied that a sale is necessary ; and I think some evidence should be adduced on that head. Suppose a sale to be ordered, the next step is to make incumbrancers parties " (n). Sale in portions : — In a suit for partition where infants were interested, affidavits were produced showing that a sale rather than a partition would be more for the benefit of the infants, and that the property from its nature and situation was not susceptible of equal partition. The decision of Spragge, V.C, was : " The fact of all the adul parties desiring a sale, and the saleable value of the property compared with its annual value, and the charges upon it sufficiently prove, I think, that a sale would be for the interest of the infants, that is such a mode of sale as is proposed, namely sales of the various portions, as oppor- tunities may present themselves from time to time: provisional contracts to be entered into and presented to a Judge from time to time, with evidence upon affidavit, shewing that the proposed sale would be advantageous to the infants ; the sale to go into effect upon being marked as approved by the Judge " (o). Where infants i^ray an inquiry : — In Na4. v. McKay (p), where the bill was for partition, the Cjv.; (m) Uncler 2 Wm. IV. c 35, it was the freeholders who reported ; cf. B' Dennie, 10 U. C. R. 104 (1852), now it would be the Master. (n) In re Foster, 1 Chy. Ch. 103 (Esten, V.C). (o) Steven v. Hunter, 14 Gr. 641 (18G8). {p) 15 Gr. 251 (1868). 4 -^a r-ai sai( sale pi-aj infai I was j and a that i and e; consid the \vi was or Cf. The ino- sect 31. In , the executi anyiirojterl real or pei niamier, ai tieed, corn "If^i the ,„ estate or in deed or ctli in whom th chose in ac assigned to «• 101 ; u ^, o3(]0),\ JurisdifiioH 'Wthoiii noti '•''on, or of „, *»V.c.^o, «• (I) TJ or otlier secu Puwhitse inoi «aid, in his' '^Presentativ (l) BJasd I cf. «' i * ■ - 'ir ■ r Tap. 10 1.] SALE OF WATER PRIVILEtlE. 199 stiid, "The infants pray an inquiry whether a partition or sale wiU be most for their benefit. The adult defendants pray a Hdle. There will be an inquiry as prayed by the infants." Partition or sale of water privilege: — Where the bill was for partition of 200 acres of land on the River Ottawa and a water mill privilege appurtenant thereto, it appearing that to divide the water privilege would be very difficult and expensive, it was held to be the duty of the Court to consider the interests of all the defendants, and a sale of the water privilege, with sufficient land for the purpose, was ordered (q). Cf. notes under section 19. The Jiulicature Act, R. S. 0. 1887, c. 44, has the follow- ing sections : — 31. In every case in which the Court has authority to order the execution of a deed, conveyance, transfer or assignment of any proiierty, real or personal, the Court may by order vest such real or personal estate in such person or persons, and in such manner, and for such estates, as would be done by any such dee the priority thereof respectively, and shall cause the same to be duly discharged of record, first defraying and deducting the expenses and costs out of the moneys payable on the nhare or shares which were so incumbered ; but the proceedings to ascertain the amount of the incumbrances shall not affect or delay the paying over or investing of money to or for any party upon whose estate in the premises there does not appear to be any existing incumbrance. R. S. O. 1877, c. 101, s. 48. 49. (1) In case of an action or proceeding for partition or administration in which a partition or sale of land is ordered, and in which the estate of any tenant in dower or tenant by the curtesy or for life is estaVilished, if the iJerson entitled to the estate is a i)arty the Court or Judge shall determine whether the estate ought to be exempted from the sale or whetiier the same should be sold ; and in making such determination regard shall be had to the interests of all the parties. (2) If a sale is ordered including such estate, all the estate and interest of every such tenant shall pass thereby ; and no conveyance or release to the purchaser shall be required from such tenant ; and the purchaser, his heirs and assigns, shall hold the premises freed and discharged from all claims by virtue of the estate or interest of any such tenant, whether the same he Caj). 71 f'n Bolton ( to F. B. in conin •'ind the Judo-e of estate ao-j ^vithin t\ «0. Wher proceedings in ca.se of «« right accordil and .siirvivorJ '^ I«»'(l ; or si a" annual suJ ("••■ceding seel ^^'•tlaimofdol ^ives had ^^^aster's of barred tJ,ei| ^^ ^^as conf ofJe ^'.^5 0. R. (") 17 O. R I the ihare til 'Ct or any 48. ,ion ot rderwl, ivut by tlee may Hee fit ; and tlie terms of such sale shall be set out in the notice and made known at the time of sale ; and after the completion thereof hr shall report the same in writing to the Court, with a description of tlie different parcels of land sold to each purchaser and the )>ri(^e8 at which the same have been sold ; and, at the exi)iration of fifteen days next after the said sale and the due filing of the report, the sales may be approved and confirmed by the Court or a Judge tfiereof ; and an order shall be made directing the rcial representative to execute deeds pursuant to such sales ; and the de^eds so executed shall be recorded in the registry office of tile, registry division in which the lands lie in the same niannef as other deeds, and shall be a bar asrainst all known parties inter- ested in the premises, and against ail unknown parties where notice was published as aforesaid, and against all persons claim' ing under or through them, and also against all incumbraiioerx where the notice hereinbefore mentioned has been given to them, in manner and form aforesaid. R. S. 0. 1877, c. 101, s, 50. Confirmation : — In a proceeding for partition a sale had been ordered by the court under which the real represen- tative sold four of the five lots into which the property had been divided by the real representative, but there being no bidders for the remaining one at what he considered a reasonable price he withdrew it. The court suggested that it might be better to wait till the rest of the property was sold ; but after consideration confirmed the sale and ordered deeds to be executed (w). (v) L. R. 21 Ch. D. 41 (1882). (itf) In re Westervelt, 10 L. J. 15. leluul [esen- bad -vrf no red a that was Ideved C»p. KM.] APPOnriOXMKXT OF COSTS. 206 wtiin« an ExtateH of (•tffctiml for the apiK)rti(iniiitf or ooiiveyinu away of the entate or J"*^"","'* iiitiTcHt iif any married woman, infant or hinatic, party to thf! iiriieiL'ilinK** ''y which the salo or partition is made or declared, an of liny penton com|K'tent to act for himnelf. R. 8, O. 1877, c. 40, H. ."i"». Cf. notoH to Hcctioiis 19 and 43. 83. An office copy of the judgment, onh'r or report deolarinff Office or ifffctinijr a partition or mUe hy the High Court shall be siitti- 9"'.'^ "^ cient evidence in all CourtH of the partition declared thereby, ,.f[, *^" (',"|'„J fttid (jf tile several holdingn by the parties of the sharon tliereby evidence. allotted to tiieni. R. S. O. 1877, c 40, s. 50. By C. R. 744, order,s in matters of partition aro to bo entered in full. 8i. Wiieru tile notice of the petiti) Re AIcColl, 8 P. R. 480 (1881). (c) Dodge V. Clapp, 8 P. R. 388 (1880). ((/) Ih. For further cases as to costs and uoninuHsion, ur Cam|)bell v. Cainphell, 8 P. R. l.W (1879), dislmrstmnUs ; Re Fleury, !» P. R. 87 (18J<1), li^'P SUV- ; Re Hague, 12 P. R. 11!) (1887), moilerntion of a bill of costs; Hemlricks V. Hendricks, 13 P. R. 7!) (18Si)), jiirisdiclio7i of local master; McKay v. McKay, 8 P. R. 3;U (1880), costs of aiJmiiustrai,rix defendimj, (e) Clark v. Clark, 8 P. R. 15G (1879). (/) 9P. R. 304(1882). Cap. 104.] C'OXSOLID.1 TED RULE 11D5. 200 only by tlie work clone in tlie Master's office. It is probable tlifit the Local Master may not be aware of, or may not fully understand or value, the kind of work devolving on the guardian in such cases out of Court. But the Judges of this Division are well acquainted with it, and know the responsibility incurred by the guardian, that he has to iic(juaint himself with all the facts of the case, which his clients cannot give by reason of their infancy, and which have to be gathered from the relatives, and in many cases from other and more impartial sources. He has not, as in the ordinary case of a solicitor for an adult, merely to carry out his clie,nts' wishes, but he has to inform himself of what is best for them, and to decide for them." Where infants had been improperly Joined as plaintiffs, it was ordered that the guardian's conunission be fixed by the Master as if he had been engaged in the suit from the beginning {(j). Consolidated Rale llOo : — By analogy to the recent case of Moon v. Caldwell (It) the costs of unncessary pro- ceedings taken, where a motion for partition irnder C. 1!. 9m9 would have been sufficient, may be taxed off undei' C. R. 1195, which is as follows: — n'.i."i. Thf Court or .Tudpre may, at the hearing of any action 'ir matter, or upon any ai)i)eal, application or [)roceiHling in M\\ ai'tion or matter in Court or in Clianibers, and whether the siuic is objected to or not, direct the costs of any writ, ph'adinj.', pititiun, affidavit, evidence, notice to cross-pxamirie witnesses, iiccimnt, stiiteinent, or other i)roceeding', or any part tliereof, which is improper, unnecessary, or contains niniecessary matter, "X '\< (if unnecessary lengtli, to be disallowed ; or may direct the taxiii),' officer to look into the same and to disallow the costs thereof, ()r.s.-14 r)isallow- anceof costs of umieces- sarv pro- ceedings. ' ' ' r i ll lit \ s ,. ^^r^P ill 210 JU-HL I'TtOPERTV STATUTES. [R. .S. 0. where such question shall not have been raised before and dt-alt with by the Court or a Judge, the taxing officer may look into the same (and, as to evidence, ."Ithough the same may be entervfi as read in any judgment or order) for the purpose aforesiiif), iind thereupon the same consequences shall ensue as if he hiid been specially directed to do so. Sec Chy. O. 71. J. A. Rule •);("); App. O. 10. Operation of ride : — The judf>finent of Boyd, C, in the above case, which was one of administration, shews the working of the rule : " The taxing officer has disallowei] to the plaintiff the extra costs occasioned by his haviiiir issued a writ instead of obtaining an order for adnuiiiistra- tion under Rule 905. Such was the course adopted by the direction of the Court in Sovereign v. Sovereign, 15 Gr, at p. 5G4, and Sallivan v. Harty, P. R. 500, and such was was the limited direction given here on further diroctioiis embodying the agreement of counsel, viz., that it was to be left to the officer to say whether the less expensive iiiethoil of obtaining administration by a suinmar}'^ order slioiilil have been adopted by the plaintitf, and if it should, then to tax the costs of the plaintiff accordingly." Unnecessarjf proceelings hy next friend : — Where a partition suit was brought by infants to effect a sale wliich might have been proceeded with by the mortga<.;ee, who was willing to consider the interests of the infants, Bhike, V.C, said : " The property must therefore be sold to realize the claims of the mortgagee, and I am asked to sanction the sale by the process of this Court, which will involve tlie expenditure of a very considerable amount of money, rather than by the mortgagee in the ordinary way. I cannot see what advantage will accrue to the infants by proceedings taken in this Court." Accordingly he dismissed the bill with costs against the next friend (i). Applica- 66. The proceeds of the sale, after deducting all costs, slial! tion of pro- be divided among the parties whose rights and interests liavi- ceeds. heen sold, in proportion to their respective rights in the pre- (i) Carroll v. Carroll, 23 Gr. 438 (187()). ><'« 'n»ii the ,,,1„ ,„ „. , ' "^"« «r »liare „f ,1,. ,„ ,.. ■"!>' '■'•■"wine.l n,„«,li^ed It al„ '' """ Portions of it .still J.. ''..■ p.-op..t, ,,.,ei!i"r ::; t'r' «" p™-- ei>a,^f '" "'« »"". etc.) ],a,I been pll ! , !k '' ™"°"« P'^'fe »« «( tl.o o„-„„,„e« (the p ant " "" '"»°""' '«"■ -Wch I''"'""": «n o.-,ler „•„. "anted .'? "" " P"""™ l-v tlie m»ty i„ hi,,, "'■^"'■^J. vesting all the un.JiJd .'"!■ "' "p""i«: :rs:rt" *r^^'- ia„d. a. .o,d '^ A!l.st.ciinti,.s.s|,;ini,„. . How se- >li:ill k.e„ an r "'■' "' '^^ce, and tlw- r "' ''^'"■e- if)( (^■) 1 Chy. CI,, o-o 1, 212 REAL PROPERTY STATUTES. [IJ S. 0. Payment into Court. 60 (1) All moneys wliich may be from time to time payable in respect of sales under this Act, v)r of securities taken in the name of the Surrogai,e Judge shall be paid into some incdr- jjorated bank designated for tliis puriK)f\vers and authorities for the county, of the i)ers(m hereby appointed the real repre- sentative, and shall jierform the duties thereof till the appoint- ment of or return of the Surrogate Judge. R. S. O. 1877, c. 101. Rev. Stat. 0. 114. Junior or acting Judge of County Court to have juris- diction. 'X ^' ' fi Hi I: The Surrogate Courts Act, R. S. O. 1887, c. 50, contains the following provision : — Judges of County Courts to be fjr ofiicio Judges of Surrogate Courts. (). The Senior Judge of the County Court in every co\uity shall be ex officio Judge of the Surrogate Court for the county ; and in case of the illness or absence or at tlie recjuest of a Judge of a Surrogate Court, or in case the otKce of Senior Judge is vacant, the Junior or acting Judge or the Deputy Judge (if any) of the County Court, shall have all the jxiwers and privileges and |)erform all tlie duties of the Judge of the Surrogate Court. R. S. O. 1>77, c. 40, s. (). 63. Proceedings under this Act shall not abate or be sus- Deaths, P'uded liy any death or transmission or change of interest, but transmission in any sucii event, if known, the Court or Judge may require "inf,!'p"P interest. ('1 McDermid v. McDermid, 7 P. R. 457 (1870). \ I 1 %' t ) r- i : f ■ ■I- following HUb-section thereto : — (2) In any case where, in the opinion of the inspector of l((,'al offices, such publication i.s an unnecessary expense, nr tlic e.\])enses would not l)e justified by reason of the fund or estate being small, the real representative, clerk or otiier officer afurc- said, u])on obtaining the direction of said inspector, may (lisi»iiw with tiie ))ublication above provided for upon such terms ussaiij inspector may direct. 69. The Judges of the Supremo Court, acting imder scctimis 10.5 and 108 of The Judirittnrv Act, shall make such tiiritf of fies, Rules and Orders for the proceedings on i>etitions mider tliis Act as they may deem expedient .and .advisable. R. S. 0. 1877, c. 101, s. 05. See notes to sections 8 and 55, supra. v' d ^ ^ 1. THE SHORT FOUMS ACTS. The first two of the Short Foi-ms Actn were the inven- tion ol' Lord Brougham. The Act (y the Conveyancing Act of 1881 (b). In the Jurist of Sept. 20th, 1845 [r), ap]-)eared an article criticising the Act as a " piirlianientaiy short cut," and a "crude ])iece of triHing," oenenilly calculated to "increase the difficulty of the nnrortuiiate conveyancer's position." The same article however gives us the clue to the (|Uestion why the Shoi't Forms Acts have been so despised by English convej'ancers iuid so gladly adopted by our own : "The first observation tli.it occurs is, that, so far as concerns the attainment of brevity, the Act seems adapted only to meet the case tvltich is the least frequent occurrence, viz., that of a mere convey- ance of the freehold from one or more vendors to one or more vendees, where there is no complication of interests in tilt.' vendors, and nothing in fact to disturb or clog the clear stream of title from A. to B." The fact that in Ontario the above case is by no means of the least f recjuent occurrence, has doubtless been one cause of our adherence to Lord Brougham's device. Dart in his Vendors and Purchasers (d) i.s etiually severe: "Cmtain short forms authorized by Acts passed in the session of 1845 have, by the universal consent of the pro- fession, been consigned to a deserved oblivion (c). "Such enactments are either unnecessary or mischievous; umiecessary, if the parliamentary form would, if unauthor- ized l)y parliament, merely express in fewer words the (") «&<) V. c. ll!»(Imi).). ('') 44 & 45 V. e. 41 (Imp.), 2nd Sdied. Part III. (' ) !l .Tnr. Part II. ,333. ('') -"itli cd. m\. [f] Ilfferring to 8 & !) V. c. 119 and c. 124. i '^% 218 /IHAL i'liOl-HUTY STATUrKS. ~1 * nioaiiiiij^ ot' tlu! t'oniiN in onliiuiry uho ; and iiiiscliicivoiis, if an unnatural and siicondary meaning' is j^ivi-n l>y the Statiitf to wonls which are />rini(i Jhric clc^ar and intellial docuiiieiit, it would be (juite possible, with the aid of the lc<,dslatuix', to express the greater ])art of an ordinary assurance, algel)nii- cally ; which would at least have this advantage, viz,, that a person who had entered into covenants A'. }'. Z., wouM hardly venture to act upon his own ideas as to the unknown value and signification of these mysterious letters, without consulting the interpretation clause of the Statute to which they owed their legal efficacy." This algebniic criticism which Dart used half in irony, has been applied in our courts with considerable force to the Act respecting Short Forms of Mortgages (g), which offends much more than the ori P'uties the "V: c'atiso ; '"ited to ^*(.' are n coliniin, f applicfihl An ill C'^iisti-ucti recent art '^-.Ve;ira( '"^horfc For ill "two V'l'tc Sta, says ; " 'Pj, tl'e use of ; coiiveyunce follow froi l«"'ty of th ■'^"id lands "■^ 1)1 nbsoli ^^^w the ^^ *-'3cape th ^'•'^treiiie Jim 0) 1.1 c. L. (<•) L. R. 17 ('* r^- K. 13 W '♦ ► ■•■ 77/ A' SIHUtT Fnn.US .\>T.S. 219 C(»luiiin lliat 1 think tho liitter slioiiM Ih' treatod more as sviii1m»Is to whicli a particular and twtendt.'d inoaninjjf is oivni I>y i\w Act, than as forms oF words with which the jHTsniis usinij tiiom aro to be at liljcrty to tamper at will ; ill shtirt, that if the le<,dshitnre had chosen to say that " A', r. " shouhl, when used in a mort!^a<,'e purporting- to ho inaile under this Act, have attached to them the meaninn instrument (u). {>,') See Barry v. An'^■r^ ni, IS A. il. L't7 (IHltl); Re Green & Artkir., 14 O. 1?,. t;!»7 (l.S^7). (n) 5GV. c. 21, s. 111. y * ^ 11 11. S. O. 1S87, CHAPTER 105. An Act respecting Short Forms of Conveyances. HVM ^rAJKSTY, by and with tlic advice and consent of the Le;;i.slative Assembly of the Province of Ontario enacts as follows : — 1. Wlicrc the words following occur in this Act. or in the Interpre- Schiihiles tluTfto, they shall ho coiistrnwl in the iiuiimfr hert^- t'ltiun. iiiafttT incntioncd, unless a contrary intention appears : (1) "Lands" shall extend to all freehold tenements and "Lands." liinilitaitieiits, whether corporeal or incorijoreal, or any un- divided |«rt or share therein, respectively. (2) "I'arty " shall mean and include any body i)olitie, or "Party." onrporate, or collepiate, as well as an individual. R. 8. O. 1S77' e. 102, s. 1. Cf. the detiuitions here with those in R. S. O. 1887, c. 100, Kiipra ; and see notes thereunder. 2. Wlinv a deed expressed to be made in pursuance of this Alt, or referring thereto, contains any of the forms of W(}rds ciiiitained in cohmm one of Schedule Pi hereto annexed, anorts to convey an estiuc in fee, also the reversion or reversions, remainder and remuindt-is, yearly and other rents, issues and i)rofits of the same lands, aini of every part and parcel thereof, and all tiie estate, right, title, interest, inheritance, use, trust, proi)erty, profit, iwssession. claim and demand wliatsoever, of the grantor, in, to, out of, or u|)iin the same lands, and every part and jiarcel thereof, with their and every of tlieir appurtenances. R. S. O. 1877, c. 102, s. 4. The pi'esent section 4 is identical with section 4 in the Act respecting Short Forms of Mort<^ages (o). Its language is very comprehensive. Thus in Winlield v. Foviirfji), Armour, J., speaks of " those very wide words," and Wil,so>ii, C.J., speaks of " tlie very extensive language of the statu- tory form ; " and it was he-Id by these Judges that wlioiv a parcel of land was purchased about 200 feet distant from Georgian Bay, and a shingle mill was erected out in the water and connected by a tramway with the land so pur- chased, the mill and machinery became part of the realty and passed under a mortgage and a grant of such hunl executed under the Short Forms Acts. Schedules, 5. The Schedules hereto, and the directions and forms there- etc., to form ;„ contained, shall be deemed parts of tliis Act. K. S. O. IS", part of Act. c. 102, s. (5. SCHEDULE A. FORM 01'' CONVKV.VNC'K INDEK SECTION 2. This indenture made the day of , one tlionsanii eight hundred and in jMU'suanoe of The Act rrupd'tiuii Shurt F^ni.^ of ('(inn iiiinris, Ik'tween (here inmrt )i. 107, iiiffrn ; nee also the notes tin s. 12, p. -f, sujira. (l>) no. 11. 102(1887). ia'^ Clip. 105.] VOVENANrS FOR TITLE. 223 till' said (|,^r:uitfe) in fee sinipli' (or othcrwi.w ax tin cm^c laiui hi) all, etc., {j,iirci.h) (Here insert ovcnant.i, or nnii other provisions.) \n witni's.s wheri'of, tlit- siiid piircicM hereto have hereunto set their hands and "^eals. U. S. (). 1S77, c. 102, Sched. A. 1'- MM 4 SCHEDULE 13. (Section 2.) DIHKCTIONS AS TO THK FOU.MS IN THIS SCHEDfLK. 1. Parties who use any of the forms in the tirst column of this Schedule, may substitute for the words " Covenantor" or " Covenantee," or "Releasor" or "Releasee," "(h-antor" or " Grantee," any name or names, and in every such case CDrresponding substitutions shall be taken to be nuide in the curies- [Kjiidint? forms in tlio sectmd column. '2. SiK'li )iiirties may sul)stituto the feminine ^'ender for tlie masculine, or thi' jilural number for the singular, in any of the forms in the lirst column of tliisSchechile, and corresjwnding changes sliall be taken to be made in tlie cnires|)(indim; forms in tlie second column. ;i. Such [larties may introduce into, or annex to, any of the forms in the first ciihiiun, any exjjress exceptiims from, or other expres.s qualifications thci'fdf respectively, and the like exceptions or (jualifications shall be taken ti he made frmu or in the corresponding forms in the second column. 4. Such parties may add the name or other designatitm of any jx-rson or lifi'soiis, or class or classes of jiersons, or any other words, at the end of form t'.'ii. (if the first column, so as thereby to extend the words thereof to the acts 'f ;my ailditioiial jierson or persons, or class or cla.sse8 of persons, or of all per- «"n< wlininsoi.vcr ; and in every .such case tlie covenants two, three and four, iirsucliof them as maybe employed in such deed, shall be taken to extend til the acts of the persiin or persons, class or classes of {wrsons, so named. Sckedule B. directions : — The eftbct of these ihrections wliich are simiUir to those in cap. 107, ivfra, will bo found iliscuMstMl in the cases under that cliapter, more especially in AV (i'llvhrhf d'- Island (7), and Clad- v. Ilanr;/ (/■). ijf till' cDvendufs (jenerailii : — Tnder a {general aj^ree- mt'iit til si'll a fee simple estate, free from incumbrances, (7) 11 ''. H. .".UrdNS;-,). ('■) 111;). K. i.v.iii.ss-i) ^ i 224 HEAL PROPERTY STATUTES. [R. S. 0. Jill mi 11. the vendor is, in the absence of express stipulation to the contrary, bound to enter into certain " covenants for title;" the usual covenants being that the vendor is seised and has power to convey in fee, for quiet enjoyment, that the estate is free from incumbrances, and for further assurance fsi. The vendor, if he was himself a purchaser for vahuihle consideration, delivering' or covenanting to produce his title deeds, covenants against his own acts only ; but a vendor who has acquired the property otherwise than by purchase, covenants against the acts of his predecessors in title as far back as the last purchase for value it). The effect of covenants for title as operating an estoj»pcl will be found discussed in the notes to the lifth clause in the Schedule to cap. 107, infra. Column 1. 1. The said {CliCClilDlt"!') covenants witli the said {c'lVfii. an Ice). 2. Tliat he has the rif^lit to con- vey the said lands to the said (cDi'tn- atittr) notwith- standinjr any act of tlie said (onrnitntii-r) FORMS OF COVENANTS. Cor.ujiN 2. 1. And tlie said covenantor dotli hereby, for hiiii^ilf. his heirs, executors and administrators, covenant, promise ami agrt!, witii and to tlie said covenantee, his heirs, executors, a'hiiiiii- trators and assigns, in manner following, that is to say: 2. That for and notwithstanding any Act, deed, nu'tttT cr thing by the said covenantor done, executed, coiimiitted ur knowingly or wilfidly [lerniitted .") (1827). ("•) Wilsnii V. Bipffar, 20 U.C.R: 8.") (18(if)) ; Thdniliill v. .Icm^s. 12 r.r'.R. iil \\x:A)\ l)Hck V. Ciirrie, 12 V. C. R. 334 (18.")4); .w also Hovt v. Widd.-r- Wd, -) U. C. R. 180 (1848) ; Bower v. Brass, E. T. 5 Vic. (Rob. i: .lus. 8S2). (r) Xasli V. Aslitoii, Jones T. I!t5. I,") Carr v. Dunn, '.) U. C. R. 240 (1S.*)2), followin? .Territ v. W.are, iiPricc, 57."). (z\ Uninskill v. Wilson, 25 U. C. R 248 (ISJfi). Sec also Shire v. Cates, 211. C.R.4Ht (1802). [n) Trust & Loan Co. of Upper Canada v. Covert, 30 U. C. R. (1870). H.H.l'.S.— 15 4 :H ii I V 22G REAL PROPERTY STATUTES. [R. S, 0. i ■ i \m \?.''^- Co venant 2. Covenant may he broke nas soon as made .— •' As to the covenant for title, riglit to convey, etc., the Supreme Court in Piatt v. Attrill, 10 S. C. R. 425, has decided that the defendants not liavinj^ in the grants made by them, under which Attrill claimed, made any resena- tion of the easement subsequently granted to Patterson, that they had no right to grant that easement to him. The defendants were not parties to that decision and are there- fore not bound by it, but it being a declaration of our highest court of the construction of these very deeds, and of the lav.- :r. ' '''^able to them, I consider myself bound by their decis; ''le covenant then was broken as soon as made, and ..au |/i,uatiff would be entitled to such damaoe.s as accruev'enant •^ntl intero '<•) Piatt V •^".""' oiilv 11,,, ssfs K fl!'! '^^'il: Cap. 105.] DAMAGES RECOVERABLE FOR BREACH. 227 Richards, J., says, ' When there has been eviction, or the plaintitl' has never got into possession of the kind, and in consecjuence of the want of title never can ; the purchase money, and tlie interest, where there is no fraud, is the measure of damages under the covenants set out in the declaration.' He also treats the covenant as a continuing one (p. 429), following Kingdon v. Nottle, 4 M. & S. 53 ; Snider v. Snider, 13 C. P. 157, and Bannon v. Frank, 14 C. P. 295 follow Graliam v. Baker. " The rule so laid down is of comparatively simple application in case of eviction by superior title to the whole of the property, or of an incumbrance of greater value than the property. But where the defect of title applies only to part it may become somewhat more difficult. But the rule in such a case has been formulated by Gvvynne, J., in The Emjiire Gold Mining Co. v. Jones, 19 C. P. 245, 257. ' In case the contract has been executed, but no title has passed at all, then on a covenant for seisin or good right to convey, he shall recover back his principal and interest, and expenses ; but in case some estate has passed by the deed, but not the whole estate contracted for, then he is entitled to recover the difference in money between the value of that estate, which has passed and that which the deed purported to convey, and which the grantor cove- nanted he had the right to convey ' " (c). Where the purchaser is dispossessed in an ejectment action by a person having paramount title he is allowed his costs of defending that action as damages in an action on the covenant for title (d), in addition to his purchase money and interest, even though he has not actually paid those (f) Piatt V. G. T. R., 12 O. R. 128, (1886) :- The judgment in this case appears to have been varied in so far as to alliiw only nominal damages for breach of the covenant of title ; Ynit the 1 rincii)les here laid down do not appear to be afifected : see the daily ne\v»- pai^rs for March 20th, 1801. id) Breiman v. Servis, 8 U. C. R. 191 (1850), following Smith v. Compton, 3 B. & Ad. 407 (1832). b' ■ it • m .i» r S h i' 228 BEAL PROPERTY STATUTES. [H.S.O. ! i; Ik- costs (e). But not so, where tlie costs are the eonseqntnce of tlie plaintiff's own act (/). Nor can he recover damatfes caused by his own neglect, e.g., permitting a tax sale (r/), Nor can he recover the amount paid by him on a com- promise (h). The measure of damages is the amount of purchase money paid, and interest thereon ; no allowance to bo made for improvements on the increased value of the land (i). The purchase money is that expressed in the deed as con- sideration, not necessarily that actually received (j). Nominal damages : — The plaintiff is not entitled to substantial charges without showing an eviction or ouster from the premises conveyed, or some other facts which would entitle him to more than nominal damages [k). Where the vendor had afterwards acquired the outstan<]in^f title, it was held that a perfect title passed to the purcliaser by estoppel, and only nominal damages were recoverable on the covenant (l). Who viaij sue on covenant : — " I consider that a coven- ant for title, with the grantee and his assigns, is one which clearly runs with the land, as it equally would though assigns were not named ; and that the grantee assigning' his supposed estate, his assignee acquires a right to .sue upon the breach of that covenant, and to recover damages {e) Stubbs V. Martindale, 7 C. P. r)2 (1857). (/) Forsyth v. Mcintosh, !) C. P. 492 (18G0) ; cf. Parker v. IMcDonalrl.'ll C. P. 478 (18G2). i'l) McColhun V. Davis, 8 U. C. R. loO (1851) ; cf. Moore v. Haynes, iV U. C. H. 107 (18(53) ; Harry v. Anderson, l.S C. P. 467 (18G3). [Ii) Hart V. Bown, 7 Gr. 97 (1859). ((') Clark V. Robertson, 8 U. G. R. 370 (1852) ; McKinnon v. Burrows, 3 O. S, 590 (1833). But see R. S. O. 1887, c. 100, s. 20. ij) See Graham v. Leslie. 4 C. P. 176 (1855). (A) Snider v. Snider, 13 C. P. 157 (1863) ; Graham v. Baker, 10 C. P. if> (1861) ; Bannon v. Frank, 14 C. P. 295 (1804) ; Emery v. Miller, Tay. 33i>; Macdougall v. Macdonell, 5 C. P. 3."'5 (1856) ; Brown v. O'Dvvyer, .So V. C. K. 354 (1874). {I) Boulter V. Hamilton, 15 C. P. 125 (1804) ; following Doe Irvine v. Webster, 2 U. C. R. 224 (1845), not M for thi' the L\ devisee,' ":'iiit «•„„ r'*'-" a tlii ia;l !„.,.„ ,.^ Wlo„-,.,i ;„ I . C. II f«) CJar (?) .Scriv ('•) Gun, n -,■"< ijli Cap. 10.").] WHO MAY BE SUED ON COVENANT. 22!) I I *♦ i ^ ' li II \A when he shows that the grantor liad either no title or nut a "-ood title when the first deed was made by him . . . I consider that upon a covenant for title, it is not essential that the person who sues as assignee should shew that a lefal interest passed to him under the deed. His cause of action is that he has not the interest which he suppose). Where the defendant conveyed with absolute covenants to plaiutirt' who before action conveyed to one I) : held, that the covenants ran with the land and the plaintiff could not sue, though they were broken as soon as made (7). Hut where objection had not been taken and he was acting for tile benefit of the person entitled and obtained Judgment tho Court refused to interfere (r). H7(o m5). (y) Sanderson v. Mayor of Berwick-on-Tweed, 13 Q. B. D. 5.51 (1S8J). •■ "'I it n n /I ^. K ' ', * ll;' 2M2 y^A:.!/, PIKU'EHTY STATUTES. [R.S.O. I j^rnntLM; in tlie po.s.session of it. Here the grantor Imd dtjini.setl to R, covenatitiiij^ witli him in the terms which nmoiint to a re- of an}' other reasonable construction, to build a dam acro.ss the river at the eastern extremity of the land con- veyed to him, i.e., at or just below the head gates of the original head race. But the plaintiff has never endeavoured to do so. The dam lie built was much further up the stream and be3'ond the limits of the lands granted to Patterson. " An interruption of such an easement would be a breach of the covenant for (juiet enjoyment : Poiiifivl v. Ricroff, 1 Saund. ;J22 : Andreivs v. Paradm; 8 Jlod. 8lH; and it seems rather absurd to say that before the plaintitl' can bring his action he must go to a heavy expenditure, with the certainty that he will not be allowed to enjoy the ease- ment. But until he attempts to enjoy it, it cannot bo said that he is intei-i'upted. Upon this ground I think the plain- tiffs action must fail as to the covenant for quiet enjoy- ment " ('(). U) Jeff ryes v. Kvans, 19 C. B. N. 8. 267, 268 (1865). ('() I'latt V. (}. T. R., 12 O. R. 119 (1886) ; see .same case at 11 0, R. 2lt), as to proper party to briiii? action after death of covenantee. f t»i>. lOr..] Ci) VENA NTS A HA INST INCU.UHRA NCKS. '2'.\:i Col.IMX 1. 4. Krii'fiDiii nil iiicum- iiianccs. OoH'MN 2. 4. Aiui that free and ulciir, iiml freely and absolutely ncqiiitted, I'xoiienitod, and forever diHcliarjjed, or otherwiHo liy the Muid covenantnr or liis heirs well and HiiHicietitly saved, kept huiMuless and indemnified of, from and a,Minst any and evei-y former and other ^'ifl, grant, bargain, Male, jointure, dower, use, trust, entail, will, .statnte, recognizance, judgment, execution, extent, lent, annuity, forfeiture, re-entry, and any and every other estate, title, cliarge, trouble and iiu!unil>rance whatsoever, made, executed, occasioned or suffered by the said covenantor or his heirs, or by any jierson claiming, or to claim, by, from, under, or in trust for him, them or any of them, Wlml s/i(nild he exceptrd froin the covemnits (tr/alnsf nti'umhi'dnces: — "It is not usual to except teuaiicieH from vear to year at rack rent in a covenant wliicli avers tliu fivtMloui of the property from incumbrances ; but as such a tenancy constitutes an interest in the land which does tiot pass by the conveyance, it is obvious that, if created ly thi' vendor himself, or any other person to whose acts his covenants extend, the estate of a tenant from year to yi'iu- onoht to be excepted. " Perhaps in no part of deeds has so much inaccuracy pivvailed as in framing exceptions of this natiu'e. Thus, whil.' a tenancy though an interest created by the c<)\e- uiintor, has not l)een noticed, a great variety of incidents not civateil by him, as land tax, quit rents, manorial rights, etc., have not been unfrequently introduced. It is clear that no suhsistini: charije or outstanding interest needs to be noticed as an incumbrance, which was not created by the person to whose acts the covenant relates. The effect of i-eferring to an incmnVirance paramount tlie original estate of the vendor, has I)eon lield to render absolute, covenants which otherwise would have been limited : Hoivcil v. Jiic/uirds, 1 1 East, (yli'i. Where the covenants were absolute, as against the acts of all persons, and rents were mentioned among the incum- iiianees from wliich the estate was warranted, it was held that small quit rents were within the covenant : Hammond V. //;//, 1 Com. 180 " (h). ('.) llythewood & Jarman, 4th Ed., Vol. V., 242. l) u HI' ■ 234 REAL PROPERTY STATUTES. [R. S. 0. V 1 For effect of conveyance of an undivided half interest " free from all incumbrances," see McCasJcill v. McCaskUl (c). For riijht of mortgagee of purchaser to benefit of vendor's covenant to pay off incumbrances, see Clark v. Bogart (d). Cf. notes to covenant 7 infra. Column 1. 5. And the said (coven- antor) cov- enants with the said {covenantee) that he will execute such further assurances of the said lands as may be requisite. Column 2. 6. And the said covenantor doth hereby, for himself, liis heirs, executors and administrators, covenant, promise, and agree with and to the said covenantee, his heirs, executoi-s, administrators and assigns, that he the said covenanter, hi.s heirs, executors and administrators, and all and every other l^erson whosoever having or claiming, or who shall or may here- after have or claim, any estate, right, title or interest whatso- ever in, to, or out of the said lands and premises hereby conveyed, or intended so to be, or any of them, or any part thereof, by, from, under or in trust for him, them, or any of them, shall and will, from time to time, and at all times hereafter, uixm every reasonable request, and at the costs and charges of the Hiiid covenantee, his heirs, executors, administrators or assigns, make, do, execute, or cause to be made, done or executed, all sucli further and other lawful acts, deeds, things, devices, convey- ances and assurances in the law whatsoever, for the better, mure perfectly, and absolutely conveying and assuring the said lands and ]>remises hereby conveyed, or intended so to be, and every part thereof, with tiieir appurtenances, unto the said covenantee, his heirs, executors, administrators and assigns, in manner afore- said as by the said covenantee, his heirs, executors, administra- tors and assigns, his or their counsel in the law, shall be reason- ably devised, advised or required, so as no such further assuranit's contain or imply any further or other covenant or warranty tlum against the acts and deeds of the person who shall be required to make or execute the same, and his heirs, executors or adniinistm- tors only, and so as no person who shall be required to make or execute such assurances shall be compellable for the making or executing thereof, to go or travel from his usual place of abode, " Shall be reasonably devised (e), advised or required": — Hoyt V. Widderfield, (/), was a case in which a covenant for further assurance, similar to the present one, was uiultr discussion. The decision in this case certainly goes so far (c) 12 O. R. 783 (1886). (d) 27 Gr. 450 (1880). (e) For distinction between deviae and advise see Stafford v. Bottorne, Cr-). Eliz. 298. (/) 5 U. C. R. 180 (1848). Cap. 105.] PRODUCTION OF TITLE DEEDS. 235 as to lay it down that a sufficient conveyance must be tendered to the covenantor, and is also authority for the^ statement that the conveyance must be devised, i.e., pre- pared by the covenantee (his heirs, etc.), or his counsel (7). The same case holds that the right of dower, which a woman has during coverture, is not an interest, the release of which the covenantee can require under the covenant for further assurance ; after the death of her husband the assurance must then be tendered Qi). Column 1. 6. And the said (eovai- antnr) cov- enants with th'saidlfor- tnanUc)ihti.t he will pro- duct' the title deetls enumerated hereunder, and allow copies to be made of them at the expense of the said ((ovenankt). Column 2. 6. And the said covenantor doth hereby, for himself, his heirs, executors and administrators, covenant, promise and agree with and to the said covenantee, his heirs, executors, administra- tors and assigns, that the said covenantor and his heirs shall and will, imless prevented by lire or other inevitable accident, from time to time, and at all times Hereafter, at the request, costs and charges of the said covenantee, his heirs, executors, administra- tors or assigns, or his or their solicitor, agent or counsel, at any trial or hearing in any action or otherwise as occasion shall require, produce all and every or any deed, instrument or writing hereunder written, for the manifestation, defence and support of the estate, title and possession of the said covenantee, his heirs, executors, administrators and assigns, in or to the said lands and premises hereby conveyed, or intended so to be, and at the like request, costs and charges, shall and will make and deliver, or cause to be made and delivered, true and attested or other copies or abstracts of the same deeds, instruments and writings resi>ectively, or any of them, and shall and will permit and suffer such copies and abstracts to be examined and compared with the said original deeds, by the said covenantee, his heirs, executors, administrators and assigns, or such person as he or they shall for that puriwse direct and appoint. No purchaser can be compelled to take a title unless he gets either the title deeds or documents which enable him to obtain the production of the deeds, i.e., a covenant to prouuco them (i). If a vendor retains the deeds, and cov- enants lor further assurance only, the purchaser miiy, under that covenant, compel him to enter into a covenant for (,'/) Mivcaulay, J., dubitante. .. (h) Of. Dack v. Currie, 12 U. C. R. 334 (1855) ; Wilson v. Biggar, 2(> I . C. R. 85 (18(iC) ; Bower v. Brass, E. T. 2 V. Rob. & Jos. 882. (i) Barclay v. Raine, 1 S. & S. 449 (1823). 1 ^ t ? ^^1 .Ul 1 ' s4 i •n . ) s 23G REAL PROPERTY STATUTES. [R.S.O. production of the deeds {j). Where the purchaser of small lots, i)art of an estate sold by auction, has had no intima- tion til at he could not have the deeds, he is entitled to attested copies at the expense of the vendor {k). Column 1. 7. And the said [coven- fintor) cove- nan ts with the said {<'()vi nil id('c) that he ha.s ddue no act to incumber the said lands. Column 2. 7. And the said covenantor, for himself, his heirs, excciitors, and administrators, doth hereby covenant, promise and ajfree, with and to the said covenantee, his heirs, executors, adniinutratoni and assiffns, that he hath not at any time heretofore made, dnne, committed, executed, or wilfully or knowingly suffered any act, deed, matter or thing whatsoever, whereby or by means whereof the said lands and premises hereby conveyed, or intended so to be, or any part or parcel thereof are, is, or shall or may be in any way impeached, charged, affected or incumbered in title, estate, or otherwise howsoever. Local improvement rates as incumbrances : — In Cum- herland v. Reams, (I) an action was brought for the breach of this clause 7, and other covenants under rather peculiar circumstances. It seems that the defendant and others peti- tioned for certain local improvements, and the same were effected and a local improvement rate consequently imposed, as a charge upon the lands benefitted. The by-law creatini; the charge was passed before the conveyance to the plaintiti' but the respective amounts for each parcel were appointed afterwards. It was held that an incumbrance had been created through the instrumentality of the defendant and within the meaning of the covenants against incumbrances. "Different would be the conclusion if the taxes were imposed by n^unicipal authority without the inteivention of the def :!ndant, in which case Moore v. Hynes, 22 U. C. R 107, would be the governing decision. In such case the private owner is in no wise responsible for the imposition of the tax " {in). U) Fain v. Ayers, 2 S. & S. rm (182<)). (A) Boughton v. Jewell, 15 Ves. 171) {180S). (/) 17 A. R. 281 (1800); 18 (). R. 1.51. See further Rf Graydon and Haminill, 20 O. R. ID!) (18!»0), where the sale was n»t yet completed. (m) V). 18 O. R. 102, per Boyd, C. Cap. lil">.] LOCAL IMPROVEMENT RATES. 237 " The final by-law distributing the assessment upon the several properties was not passed until after the convey- ance to the plaintiffs, but that was only the necessary act for the completion of the proceedings which had been ah'eady taken at the defendant's instance " {n). The measure of damages in the above case was consid- ered to be a sufficient sum to remove the charge. Tho following enactment has rendered it unnecessary to add the words " and subject to local improvement rates " to the exceptions usually made after the covenants for title ; which addition had become a commonplace among our con- veyancers after the above decision in Cumherland v. Kearna. 55 Vic. Cap. 42. ()'2ir(. Where local improvements benefitting real property Local iin- have heretofore or shall heieafter be made under the provi- provenient sions (if the local improvement clauses of this Act the costs covenant whereof, in whole or in part, have been charged upon or against again.st the real proi)erty, the petitioning for or procuring to be incum- inade, or the making of any such improvements or the l"'"'"'^''"^- charging the costs thereof ujion or against the real property, (ir the fact that they are a charge upon or against such real projjfrty, shall not be deemed to be a breach of the covenant liy a vendt»r or person agreeing to sell, that he has done no act ti) encumber the real property, except to the extent that the animal or other payments in respect of such charge are in arrear, and un|ai(l, but this shall not affect or apply to any case already adjudicated \\\wn or now pending in litigation, 54 V. c. 42, s. .'{5. Cni.i-MN 1. Column 2. ><. And the 8. And the said releasor hath i-eleased, remised and forever reli'iN- "''' quitted claim, and by these preseiits doth release, remise and to tlie .said forever quit claim, unto the said releasee, his heirs, executor.^, (nlutfii) all administrators and assigns, all. and all manner of right, title, * '•'''"I''* interest, claim and demand whatsoever in, to and out of the said lands and premises hereby granted, or intende sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted and released, and by these presents doth grant and release unto the said grantee, his heirs, executors, administrators and assigns, all her dower and right and title which, in the event of her 8ur\ iving her said husband, she might or would have to dower, in, to, or out of the lands and premises hereby conveyed or intended so to be. R. S. 0, 18'", c. 102, Sched. B. It is noticeable that to the blank before "dollars" in column two, there is no corresponding blank in column one, so that the wife is in the position of releasing her dower for an unknown and, so far as the present Act is concerned, inexpressible consideration. 0. And the said (A. B.) wife of the said dirantor) hereby bars her dower in the said lands. R. S. 0. 1887, CHAPTER 106. An Act respocting Short Forms of Leases. ' 1 i id'' I ,^^ m HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. Where a deed made accordinf? to the form set forth in Scliediile A, annexed to this Act, or any other deed expressed In be made in pursuance of this Act, or referring thereto, con- tains any of the forms of words contained in column one of Solii'dnlo B, hereto annexed, and distinguished by any number therein, such di*d sliall be taken to have the same effect, and be construed as if it contained the form of words contained in c iliimn two of said Schedule B, and distinguished by the same miiuber as is annexed to the form of words used in the deed ; but it shall not be necessary, in any such deed, to insert any such number. R. S. O. 1S77, c. 103, s. 1. 2. Any deed or part of a deed which fails to take effect by \ irtiie of this Act shall, nevertheless, be as effectual to bind the parties thereto, as if tiiis Act had not been made. R. S. O. 1877, c. 103, s. 2. 3. Every deed, unless an exception is specially made therein, shall be held and construed to include all out-houses, buildings, l)iirn^, stables, yards, gardens, cellars, ancient and other lights, paths, passages, ways, waters, watercourses, liberties, privileges, • asements, profits, commodities, emoluments, hereditaments, and appurtenances whatsoever, to the lands and tenements therein comprised belonging or in any wise appertaining. R. S. 0. 1877, c. 103, 8. 3. 1 Unless the contrary is expressly stated in the lease, all Cfivenants not to assign or sub-let without leave entered into by a lessee in any Uiase under this Act made after the 25tli March, IS'^ii, shall run with the land demised, and shall bind the heirs, pxecutors, administrators, and assigns of the lessee whether mentioned in the lease or not, unless it is by the terms of the Where words of column 1 of Schedule B are em- ployed, the deed to have the same effect as if the words in column 2 were in- serted. Deeds fail- ing to take effect under this Act to be as valid as if Act not made. Deed to in- clude houses, etc. Covenants to run with land. fi; r, I h% 240 HEAL PHOPEllTY .STATUTES. [R.S.O. Cap,; I, •!•' If >i V 1-f - I 1 1' * lease other wi 86 expressly provided, and the proviso for rueutry contained in Schedule B to this Act shall, when inserted in a lease, apply to a breach of either an affirmative or negative covenant. 49 V. c. 21, s. 1. The mischief aimed at by section 4 is to be found iu Lee V. Lor8ch(a), which case left it extremely unceitain whether the covenant not to assign or sub-let ran with the land so as to bind the heirs, etc., and decided that the right of entry is for non-performance of covenants ; that is to say, for not doing something which the lessee had engaged to do. The result of the present section is to make the covenant run with the land, and also apply to the case of the lessee doing something which he was not to have done. The same subject is further pursued in the 5th direction hifra. SCHEDULE A. (Section 1.) FORM OF LEASE. This indenture, made the day of , in tlie year of our Lord one thousand eiglit hundred and , in pursuance of The Act respecting Short Forms of Leases, between , of the first part, and , (jf the secimd part, Witnesseth, that in cnnsideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the said party (or parties) of the second part, his (or tlair) executors, administrators, and assigns, to be paid, observed, and perfonncd, he (or they), the said party (or parties) of the first part, hath (or have) demised and leased, and by these presents do (or doth) demise and lease unto the said party (or parties) of the second part, his (or their) executors, administrators, and assigns, all that messuage or tenement situate (or all that jiareel or tract of land situate), lying and being (here insert a descrip- tion of the premises with sufficient certainty), To have and to hold the said demised premises for and during tiie tenn of , to be computed from the day of fne thousand eight hundred and , and from thence f'rth next ensuing, and fully to bo complete and ended. Yieldin); and paying therefor yearly and every year during the said tenii (a) 37 U. C. R. 262 (1875). Be p. m, demise |).'irt ol eiijoj', I iiiteiidii used " {( io Iea.se to April, Ol more eoi TJiis we ] W'as datei ''^'i^ July, April 1st, 'Jeeds, tal under a J J ('') Cf. sj •>""t »•• «tl.l '■'•'■fi'iisoii, <» J'') 2a U.I ■^'■•f^'-enceoaulsl "'"tnwhcti„;,r /«.val)]e i„ I?,! /•'•• -^Ml'nite. I,-' Horto,', V 'J'i^ntevent.rb (f) 10 C. p| "■'i.l>.,s "I. jm 'A m in- If vr Cap. 106.] DEMISE AND LEASE. 241 hereby granted unto the said party (or parties) of the first part, his (or their) heirs, executors, administrators, or assigns tiie sum of , to be payable on the following days and times ; tluit is to say (on, etc.), the first of such payment to become due and bo made on the day of next. R. S. O. 1877, c. 103, Schedule A. Demise and lease : — " It is laid down in the Touchstone, p. 1(50, that when a lease for years is made by the words ik'inise {h), or grant, the law intends a covenant on the part of the lessor that the lessee shall quietly hold and enjoy, but no English case has yet decided that a similar intend inent is to be made when the word ' lease ' is alone used " {<■). " To be comjjuted, etc.": — It is better in filling in the lease to put in the exact date as, e.g., " the first day of April, one thousand eight hundred," etc., rather than the more compendious form " the first day of April now next." This we learn from Bell v. McKmdsey (d), where the lease was dated March 15th, 1862, but the lease was re-executed in July, 1862, and the term held to be computed froni April 1st, 1863, instead of April 1st, 1862 ; lea.ses, as other deeds, taking effect from delivery, not from date. " Yielding and Paying": — In McCalluni v. l^nyder(e), under a lease dated 1st October, 1857, hahenduDi for five ('-) Cf. Saunders v. Roe, 17 C. P. 344 (1807). (o) Draper, C..T., in Ross v. Massingberd, 12 C. P. 04 (1802). Sic furthiT Siiiiut V. Stuart, 5 O. S. 301, implied covenant for quiet enjoyment ; Harvey v. IVrguson, !» U. C. R. 431, effect of " lease and to farm let." (d) 23 U. C. R. 102 (1803) ; 3 E. & A. !). For cases as to time for j)ayment under lease, nee Neal v. Scott, 10 U. C. R. 301 ; Joslin v. .Icfferson, 14 C. P. -tiO; Hu.skiuson v. Lawrence, 20 U. C. R. 570; Wilson v. MjicNamara, 12 I'. C. R. 440, terms of payment a fact for jury ; Black v. Allan, 17 C. 1*. 240, referenct' causing a i)ost|)onement ; Brown v. McCartv, IS ( '. 1*. 4.51, pleading's nrntnulictiug legal effect of lease; Nowery v. Connolly, 2!) U. C. R. 311, rent l«,vahl(. in kind ; Irwin v. Hunter, 1!) C P. 3!tl ; Peacey v. Ovas, 2i> C. P. Wl, Milhnine v. Hart, 4 U. G. R, 52.">, Hus])en8i(«n of rent by implication fnmi an agreement. As to payment in advance, sre Brown v. Black well, 3") qiiciit events by wiiich rent to cease or be apportioned. (<) 10 C. P. 191 (1800). Cf. Eckhardt v. Raby, 20 U. C. R. 45S, H.K.l'.S.— 10 i^W- ■A f^ h ri 242 REAL PROPERTY STATUTES. [U. S. 0. years from the date thereof, " yieldintj and payin;^- thocfor on every first day of October during the said term," it was proved that the first yeai*'s rent had been paid in adviiiice. It was held, however, that the rent was not payable in advance under the terms of the lease, and that the teim included the whole of the 1st October, 1(S62. Efect of indefinite habendum : — In Reeve v. Thorn psnn (/), the habendum of the lease, purporting to be made according to this Act, was, " during the term of occupancy as tenant of the lessee by said G. T. of premises on K. street, belonging to the said lessee. The said term to Ik computed from the first day of July, A.D. 1880, and from thenceforth next ensuing, and fully to be completed ami ended as soon as the said G. T. shall vacate the said premises or cease to reside thereon." It was held that this lease did not operate as a lease for years, owing to the uncertainty of the termination thereof, but would be a tenancy at will until payment of rent, when it would be a tenancy from year to year. SCHEDULE B. (Section 1). DIRECTIONS AS TO THE FORM OF THIS SCHEDULE. 1. Parties who use any of the forms in tlie first cohinm ot this Schedule, may substitute for the words "Lessee" nr " Lessor " any name or names (or other designation) and in every such case corresponding substitutions shall be tiiken Id lie made in the corresponding forms in the second column. "Any name or names": — e.g. "party of the frd part" (g). 2. Such parties may substitute the feminine gender for the masculine, or the plural number for the singular in the foriin in the first column of this Schedule, and corresixmdiiig clianges shall be taken to be made in the corresponding forms in the second column. (/) 14 O. R. 499 (1887), Ro.^e, J. (flr) Per Patterson. J.A., in Emmett v. Qninn, 7 A. K. 328 (1882). Cap. Tin's of the t! con.sideri ^0 the CO ^vithoiit ] exi)ressJy aS''^in.st H '''ippenin^ ^'iHfc with »?^"en assig -'J ; o\ieii ^•^ Paul 'lable for «"eJi asaio- "Inth, '"aintain T a R (*) 12 0. ••'^"8«0).See' * •(, 1 Cap. IW). KXTKST OF ASSia NEK'S LIABILITY. 243 3. Such parties may iiitnKlucH into or annex to any of the forms in tlin first column any e.x|)rt's.i exceptions from or express qiuvllHcutious thereof respectively, and the liii were expressly mwied. Extent of assignee's liability : — " Now it has been expressly held that an action of covenant will not lie ajjainst an a3si 0. K I (-) Si-t: covj „, I") Cwwf, Cap. IOC] fiCOPE OF COVENANT TO REPAIR. 245 While it seems that where the lease is silent as to the taxes, the landlord should pay them (p), yet if a tenant who covenants to pay the rent without deduction does pay the taxes, he cannot claim a deduction {q). For how far this covenant extends to arrears see McNaiKjhton v. Wigg {r) ; Ileyden v. Cadle (,s). For further cases see McCarrall v. Watkms{t); Taylor V. Jarm'in {i(^) ; Scragg v. City of London (v) ; BucJdey v. Beigle (w) ; Finch v. Gilray {x) ; Carson v. Veitch (y). Column 1. Column 2. 3. And to 3. And also will, during the said terra, well and suffioientlj' repair. rei)air, maintain, amend and keep the .^-^id demim'd premiHes with the appurtenances in gfiod and substantial repair, and all fixtures and things thereto belonging, or which at any time during the said term shall be erected and made, when, where, and so often as need shall be. Covenants to repair or leave in a state of repair (z) run with the land and bind the assignee of the lessee of (.leinised premises, though not named (a). Scope of the covenant to repair : — " To repair is not the satne as to put in repair, which may require the building of something new. The ordinary repairing covenant is (/)) Dove V. Dove, 18 U. C. C. P. 424 (18(>8). ('/) (irimtham v. Elliott, (i O. S. 1!»2 (1842); Wade v. Thompson, 8 L. J. 22. See McAuiiuy v. Tiul 0. R. 70« (188.5), deduction of taxes from rent. (:) Sec cov. No. 8 below. (a) Crawford v. Bugg. 12 O. R. 12 (1886), citing Dean 4 Chapter of Windsor's case, 5 Rep. 24 ; Hlake's case, « Rep. 4H; Keeling v. Morrice, 12 Mod. 371 ; Matures v, Westwood, Cro Kliz. 599, «17. 1 I • , i fl '^f If" ' ■' \iil i:: ). Wood fall says (c) : — " Wlicre a lessee covenants to keep old, preinis(!S in repair, lie is not liable for such dilapidations as result I'l-oni the natni'al operations of tiiiio and the elements ( t Ik- u , (b) Martyn v. Clue. 18 Q. B. 074 (18.52). (c) L. & T. 13th Ed. 58!). {d) Citing Eijtteridge v. Munyard, 1 Moo. & R. 334. (c) Citing Stanley v. Towgood, 3 Bing N. C. 4. if) Citing Burdutt v. Withers, 7 A. & E. VM. (v) Citing Mantz. v. Goring, 4 Bing X. C. 451 ; Yonge v. ^f.-jtitz, G Scott 277 ; Bflcher v. Mclntosli, 8 C. & 1\ 720 ; 2 Moo. & R. 18() ; Woolcock v. Dew, 1 V. & F. 3:<7. Ciip. w>.] REMOVAL OF FKXCE. 247 is to take ciu'e that the preiuiHe.s tlo' not Hutt'er more thiiii the ()pt'nitit»n of time and nature wouM atl'cnt. He is bound, I take it, by reasonable application and hibour to kt'cp the pretiiises as nearly as possible in the same con- dition as when they were (hMuiscd : Kuflcrnhjc v. Mitn- ,l,ir across the cattle yard temporarily to keep certain animals separate, because it was in that position at the time of the demise, could not be moved without conuuitting a breach of the covenant (/,). Column 2. 5. And also will not at any tinin durinfr the said tenn hew, COIXMN 1. 5. And not ., ^ „ ,_ til cut down f,.]]^ (.„(; down or (K-stroy, or cau.se or knowinj^ly jHTniit or stift'cr to bo lit'Wi'd, fcllwl, cut down or dextroyrd, without tlif cmisfit in writing of the lessor, any timber or timber trt'cs, except fur n^'cessary rei)airs, or firewood, or for the purpotie of clearance as herein set forth. (i. .And that the said (leu- xnr) may en- ter and view state of re- ]i:iir, and that the said {/( KStl) will repair ac- cording to notice. 6. And it is hereby agreed that it shall l>e lawful fur tin- lessor and his agents, at all reasonable times during the .said term, to enter the said <]eniised i)reniises to examine the con- dition thereof ; and furtiier, that all want of reparatimi that upon such view shall be found, and for the amendment nf wiiiih notice in writing shall be left at the premises, the said le-isct-, his executors, administrators and assigns will, within thni- calendar months next after such notice, well and sutticii-ntly repair and make gocKl accordingly. The covenant to repair accordinjjf to notice is (|ualitii'il by any exceptions that may be made in the covenant to repair, even although the same exceptions are not ex|)rL's,sly made in the covenant to repair according to notice (/). Whi'rf hindloi'd ctn'CiKi iitx to rf'ixtir: — "As betwoeii landl«»id and tenant the former is not liable to rtpair re.lley, 1 (). R. 217 (I8.S2): the leiiriiM Chief .lustice held tliat as rent had been acciepted after the reiiinvui »f tin- fence, sucli atjceptance was a waiver of the forfeiture if any. C'f. lldhhics's >■ Lang. 11 (). li. 1 (ISSti), waiver; breach of wall to make dcH)r is breach ot covenant ; erection and repair of fixtures. (0 Thistle v. Union Forwarding & K. W. Co., 29 C. P. 7« (1«7H). ,.r*^ lit Cap. 106 ] VERBAL ASSENT NO PROTECTION TO LESSEE. 249 luiikiiiy the repaii'H antl char<;inj^ it against hi.s landlord, or takiiit; it out of the rent " (7h). CoLiMx 1. Column 2. 7. Ami will t- And also that the lensee Himll not, nor will dtiring tli« iKitass „-iiiir . .^ijj tenn, assign, transfer or set over, or otherwise hy any "t I'lv^' ' **^* °'" ^^*'^^ i>rocure the said premises or any of tiiein to be assifi^ned, transferred, set over or sub-let unto any person or persons whomsoever without the consent in writing of the lessor his heirs or assigns first had and obtained. Verbal .sent of lessor no protection to lessee: — In Cai'ff'i' V. Hihhlcthunite (n), a case under this .section, it WHS lu'ld that a subseiiuent oral acfjuiescence is not autfi- cicnt to bind the lessor, as having waived the forfeiture. Is notice to quit or demaml for pofisesiiion neccssart/ in c.Kse of hreoch ! — "' I find no authority reijuirinj^ either a notice to cjuit or a . for what is sutticient evideneo of niidcrletting. (/') 10 0. K. 24S. ('/I 110. K. 73.-.. !'•) n; A. K. .-w". (') IJ r. V. II. CAH, where sub-tenant agreefl to gii 1 ut when required. (0 ■-"•• V . V. U. '257 assigiuiient for benefit of creditors. (11) 40 I". V. H. .-il", assignment by way of mortgage. (') 40 U. C. R. r)70, action of trospass by undertenant (without leave). •44' i • i «l V '■?;■ jl ) ^ ¥ y.mn i^ %i. ' "^■' 250 Il/'JAL PIWI'KHTY STArrTKS. [R.S.O. (IV ■ COLIMN 1. 8. Aiulttiat lif will Iciivt' the prfiniscs in >f(M)(l re- [•iiir. !(. Proviso for ri'-ciitrv Ity tilt' s;ii(l )ll(!l|)ilV C'ui.lMN 2. 8. And further the; Icssci- '.vill, at tlio expiration, (,r dtlicr Hooner (U'termination of the said term, peaceably surreiidtT iiini yield np unto the said lessor the said iireniises herel)y deiiii.-t-il, witii tile appurtenances, tojrether with all buildiiifjs, ercctiunj and fixtures thereon in (:fo'id and substantial repair and con- dition, reasonable wear and tear and damage by tire onlv e.\eei)ted. 9, Provided always and it is hereby expressly apreeil, tliat i; the rent herelty reserved, or any i)art thereof, shall ))e w\\rM\ for fifteen days after any of the days on wliicii the same ou^'l.t to have been jiaid, although no formal demand shall have l»in ment of rent made thereof, or in case of the breach or non-performance (.f anv oi n<»n-pei- |.jf j,||^, covenants or agreements lien-in contained on the part if formanci' of ... , ' covenants. thiMessee, his executors, adnnnistrators or assigns, tlieii aii'l in either of such cases it shall be lawful fur the lessor at any tin. hereafter, into and upon tlie said demised premises or any |wrt thenuif, in the name of the whole to re-enter, and thesaiiif tu have again, ni-jKissess and enjoy, as of his or their formi'r('>t;itc; anything hereinafter contained to the contrary notwitlistanilin.-. V((i'iatl<)i}>^ of tlir proriNi) for rc-ent I'lj : — In Crozirrw Tahh ('»'), the proviso for re-entry a[)])eared in the t'ol lowing' form : " Proviso for re-entry by the said lessor on nmi- payment of rent, whether lawfully demanded or not, or on non-pei'formance of covenants, or seizure, or forfeiture of the said tei-m for any of the causes aforesaid." It wi^ held that the statute was applicable and further tli.at the proviso extended io covenants after as well as before it in the lease. " It s/udl ha laicfid In rc-nifcr" : —Doe KimfstColli'iic v. Kenned)/ (.»•) wlien the proviso stated that " it shouhf '" lnwfid for the. liindlot'd to rc-oder, Rol)inson, CJ., Ih'M that the effect of the non-payment of rent upon such a demise would be to make it not void ty>.sf> facto but only void upon proper proceedini^s bein;f taken for that purpose; and conse(piently that until such proceedings were taken the term would subsist in the tenant. m (»•) 38 U. C. R. 54 (l.S7(i), Harrison, CI. (.»•) T) IT. C. H. .r,77 (1S4») ; ( 'f. I) 1. Cubitt v. McLeod, Hob. & Jos. 2(i;t-': ^fcl).mald v. MeDonahl, li" U. C. K. 270 ; Dalye v. Koliertson, IH U. C. K. 411 (ISCO), sale by slieritf after forfeiture ; ON are v. .McCormack, ao U. C. K. ri(i7. P i - Cap. 10(1.] IIM/FA/i' 0/' RKillT OF KyTItV. 251 Pi'oi'iso (ihsolatdij determining lease: — A proviso is somotimes added in leases making the le(/lif of entrij : — " Mere knowledge or ac({ui- 'scenoo in an act constituting a forfeiture does not amount to waiver. There nnist be some expenditure of money in iiii])ruvements or some positive act of waiver (/>), such as (.'/) 37 I". C. \i. lltS (187.-)); Cf. McLellivii v. Rogers, 12 V. C. 11. ."hi. (:) t'itiiiK' I>|>»' <1. Hryan v, Bancks, 4 15. & AM. 401 ; Ariisby v. W.kxI- «.ir,l, G 15. & C. r.l'.l ; Dot.', d. \a«li v. Biiuli, 1 M. & W. W2. ("I ir.c. 1', r_>(isG4). (M <■;!., ii sulniii,ssion to luhitriition : Bliick v, Allan, 17 C. V. 210 ; vxtt'ii- -1 n of time : Flowt-r v. Duncan, i:J (Jr. 242. m i 1. i| \im .m mmw IF 1 , 8( ,j ■ |i ij'j - hi! If; 252 /{JiAL I'ROrKltTY STATl'TKS. [RH.O. receipt of rent" {c). But receipt of rent that had accrueil before the forfeiture is not a waiver {d) ;and it seems that where the lessor has re-entered for a forfeiture, receipt of rent will not prejudice as there can be no waiver after an entry {e). For further cases as to forfeiture and re-entry, hi'i> Hijndman v. Williams (/) / Sheldon v. Sheldon (g) ; Tai/lor V. Jernnjn (h) ; Heleij v. The Canada Co. (i); McLaren v. Kerr (j). Column 1. 10. Thtisaid (A'.svo/-) cove- nants witli tht' siiid (/ex- .w) for quiet enjoyment. Column 2. 10. And tihe lessor doth hereby for himself, hie heirs, execu- tors, adinini.strators and assij^ns, covenant with the lessee, his executors, administrators and assigns, that he and they payinf? the rent hereby reserved, and jjerforming the covenants herein- before on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, without any interruption or disturbance from the lessor. his lieirs, executors, administrators and assigns, or any other j)ers(m or persons lawfully claiming by, from or under him, them or any of them. R. S. 0. 1877, c. 103, Sched. B. ; 49 V. e. 21, s. i. " Claimiiuj b>/,f>'om or under " : — In Bellamy v. Barnes (/.), the lessee being evicted l)y the assignee of niortj,'ages created prior to the lease, brought an action for breach of the covenant for <]uiet enjoyment. It was held that he could not recover as the assignee of the mortgages was a (p) Harrison, C..T., in McLaren v. Kerr, 39 U. C. R. 507 (1S7r Roe v. Southard, 10 C. 1'. 4,h8 ; Mcdonald v. Peck, 17 U. C K. L'7ii; lileecker v. Canij)bell, 4 L. J., 13fi ; Roaf v. (larden, 23 C. P. 09 ; Manniii)? v. Dever, 3.'. U. C. R. 294 ; Leighton v. Medley, 1 O. K. 207. As to delay in |ir.' ceedings srr Kerr v. Hastings, 25 C. P. 429. As to continuing breaches n( Ainsh^y v. Balsden, 14 II. C. R. 535 ; Holderness v. Lang, 11 O. R. 1. (d) Dobson v. Sootheran, 15 O. R. 15 (1887). (r) Thompson v. Baskerville, 40 U. C. R. (514 (1877). (/) 8 C. P. 2',»3, no reservation of right of re-entry to a stranger to legal estate. in) 22 U. C. R. 021, right of re-entry not affected by penalty attache It" breach of covenant. {h) 25 U. C. R. 8(5, non-payment of taxes as a cause of fi rfeiture. (/) 23 C. P. 20, 597, effect of proviso for determining lease by notice, on right of re-entry. Ij) 39 U. C. R. 507, ambiguous covenant. (*) 44 U. C. R. 316 (1879). 'M. rf^ * f i ■ ■ Cftli-KX).] POSTPONiya LEASE TO MORTOAliE. 253 pt'isou not "claiming' by, from or under" the lessor, but cliiiiiiiii;;' under the lessor's predecessor in title ; and that it mado no diHerence that tlie lessor had assumed the iii(irt;^'a;;'<'S. Kffed of in)!^tpo'ain(j lease to Mort()<((fe : — By an agree- ment ]K)stponing a lease to a mortgage the lessee will be plivced in no worse position than if the mortgage had been iiia.")3 (18tJ2), enjoyment interfered with by Act of Legislature. (n) 1.") C. P. 27tJ (18 II- i^ R. S. O. 1887, CHAPTER lOI. Ai: H^^ (hit! tin 1. w ■Sclii'diili'.- iiiaftcr iiK (1) ". fiTHlitiiiii M(|c,| J, act C') "I <-■ 'ni"iMti' a 2. \V\u Vet, or any •^iiaiic'c of t f'TIILsof „•, •^I't. and (li >'iall 1)H tai, "ei'iitaiiici ■V'IihIuJ,. J{ '|'-.\>• in nff^ im r* \ mm >v f ■\m R. 8. O. LS87, CHAPTl^Ul 107. An Act respecting Short Forms of j\Iortg;i.i;os. H HR MAJESTY, by and with the advice and consent of the Leur- suance of this Act, or referring thereto, contains any of the fnriiiN of words contained in column one of .Schedule B, to this Act, and distinguished by any number therein, such mortgage -hall he taken to have the same effect, and be construed as if itccmtaimil the form of words contained in column two of said Solicdulf B, and distinguished by the same number as is an- iii'xcd t(> the form of words used in such mortgage ; but it shall 111 It he necessary in any such mortgage to insert any such imiiihtT. U. S. O. 1877, c. 104, 8.2. 3. Any sueh mortgage or pait of such mortgage wiiiuh fails t'. takf irUiiances whHtsarcel thereof, and if tlio Kanie purinirtH to convey an estate in fee, alno the reverHion and reversionw, remainder and reiiiiiiii(|fr>, yearlj' and otiier rents, isHiie.s and profits of tlie same laiid.-i, um.] of every part and parcel thereof ; and all tlio estate, right, title, interest, iniieritance, use, trust, i)r()|H'rty, profit, iM)ssesNii.n, claim and demand whatsoever of tlie grantor in, to, out of r,r ujion the same lands and every part and i)arcel tiiereof; with tli>ir and evt-ry of their ajipurteiuinceH, suhject always to the nwr- vations, limitations, provisotfs and conditions contained in tli" grant of such lands from the Crown. K. S. (). 1877, c. loi, s. -I. Compiire the notes to the corresponding sections in Cliapter 105. Sched • in contained, sliall be deemed parts of tliis Act. K. S. O. X^l', c. 104, s. (1. I T 1 r 1 SCHEDULE A. {Stdiua 2.) FOIIM OK MOKTUAGE. This Indenture, made the day of , one thousand t%'iit hundred and , in pursuance r)f The Act respecting Short Fdriiisdf Mortgages, between (hen' iuKCvt the nitmrs nf jHirtii's ami nritah, ifii,ii)w\V nesseth, that in consideration of of lawful money of Caniwla, nnw paid by the said mortgagee {"/• mortgagees) to the said mortgagor ("/iimrt- gaiJfors), the recieipt whereof is hereby iKjknowledged, the said mortga(,Mi' ( '' mortgagors) doth ("*• do) grant and mortgage unto the said mortgatH' (■'• mortgagees), his (her "/• their) heirs, e.xecutors, administrators and ascipn- f"r ever, all (ixinrln). (Here insert /irnrisacs, cucenants ur other provinions). In witness whereof the said parties hereto have hereunto set their lian I- and seals. [R. S. 0. 1877, c. 104, Schediil.' A. SCHEDULE B. (Seelio.i 2). niRECTIONS AS TO THE FOKMS IN THIS .SCHEDULE. 1. Parties who use any of the forms in the first column of this Schedn.- may substitute for the words "mortgagor" or "mortgagors," or "mortgas" IS • ' if^. Cap. 100.] n7FA".V HA /I OF DOWHR IX MORTllAdK. 267 (ir "iiiiirttfageec," any nunie or naincH ; and in ov«Ty mioli cas<> corrcsiHindint^f mljstitiitionx shall be takon to be nuwle in the corrtMponding forni.>) in tlif Kfciind column. 2. Such parties may subHtitnt« the feminine gender for the masculint', or till' plural nuudii'r for tlie Hingular, in any of the forms in the tirnt cohunn of tliin .Sciicdnle ; and correHiKmding changes shall be taken to be made in the corr3), Rose, .T. ; Pratt v. nunncll, •_'! (). K. 1, considered; this latter is an exceedingly important cast> "!> till' subject of dower in mortgaged proiH'rty, and collects the cases / and cnii, H.ll.P.H.— 17 i i.38 Cdl.lMN 1. i:i:al I'iioi'KUTi: siatiitics. [U.S.O. '1. Vrn. vidcd: 'I'liis nil rt^^is'c to ii»« VI lie I nr;/) of lavfiil mo- 1 ey of ( '.'iiiii- ihi, with in- vdri'Ht at 1 rate of in- I'nttt) iitT cent, as lol- manca of stutiite lii- bonr. r'oi.iMx L*. '2, Pr(ivi(lf'(l always, aii'l t!)f>*i' proHents arc n|>( n ihi» I'XjirPHi Liiivliti.'in, lliat if the sai'l iii('rt;,M;<(ir, liis hvii's, (Atcut' is, a,|- iiiiiiistiators or asni^-iiM, or any of tlitui, do and Hliall v il uiid truly pity or cause to he pr.id unto the said inortjfa:,^ <,, |,ji, cxt'-iiitor-, ad)iiini-itr:>tors or ii-Mi^rns, tlu' just and full . iin .jf (iniiujit ■'( iirincijtiil inoii'ii) af lawful nionfv of Cannda, with intfrest thorpon, at tiie rate of (lute of /)/^<'»'fs<) I'W cint. [ler annuui, on tiu' days and tiuifs, and in nianiirr fMlldwiny- th»t is to say (/(/•//« of jtai/menl of pri;u'iitid iind inturtt), withmit any deduiiiioii, defalcation (t aliHtcnient our, of tiic Kanic fur ur in ii'ftpect of any taxe^i, rate;*, levit s, charges, rents, asHcssiuent*. Ktatuto labour or other impositions whatsoever alrea'ly rated, lows : (!■ nns (.Imrtfed, a>-.essod or imposed, or hereafter to be ratod, '•liiuwl. "v 'r'''r'>n/ a^se-i;^(Kl or imposed by authority of Parliament oi (>f t'lu Legin- and intfrfst) latiiro, or otherwise howsoever, on the said lands and tonciiient', And taxes hereditanients and jiremises, with the api)urtonnna's, or on tli* said miitg.'igee, his heirs, executors, administrators or assiffii*. in respect ''f the said premises, or of the said money or iiiterw", (»r any (ither matter or thing relating to tht;se prosoiits, .imi until such dftfa'-.It as aforesaid shall and will well and truly |my, 'in and perform or cause or[)rocnre to !»• paid, done and p'rfDnn'^l, all matters and things in this proviso hereinbefore farm to his son f\nd took back from liini a iii»»itoai{e unit, with a proviso for redemption on payment of 84,000, with- out interest, in manner followinf^: to pay W. H. and A. H. his wife, (lurinff tlieir joint lives, i?.']00 a 3'onr, and to continue to make the snid payments to tiie survivor during iiis or her life; and one year after the death of both to [wy lii^ brothers and nisters S-'^OO each at the times therein men tioned; which words were inserted in writing, the rest iM the instrument being* in j'l'int. Tiie (juestion iiruMj, \v.(^ tlie son iMitithnl to a dischai_i,e on payment of the iV" Sim of .^ r.OOO. Hoyd, C. — It is impossible to gi' »• lite;' eii'ect to all the parts of the mortgage in que^^tioii. Hi' defeasance clause upon ])a}-ment of !^1,000, witliout in- terest, is quite irreconcilable with the particulars rcgiirdiu;' (b) 10 O. K. 172 (1885). ID M ■■'vm il%^ 'I^'i :*- C'M). W>.] /'/■.'/.M'.N lA rij\-j:yA\r yo /-.i )•, 259 the j',iyiii''Ilts uliifll l\u' lili>rtL;;l!4(' is iii.Milc to SOCUIT. . . I inU-v tlint Sl'.OOO was iiiuntioned n.s a -^cmmI Kamd sum to lie oxpntssod in tlic iK'nl as tlir |iiic(> cf tlic \n\u\ eoiivoyod totlit'si'n: hut it wns in truth no niniv than tlic noininal cou.'^idcrition insertnl to'/ the sai, (•ovciiaut, prdiiiisi mid agrct- to iiiul with the said iii()rtj,'ag(^i', hi.s lirir.><, t'.\»'eiitcirs, admini>"- tViitiirn and iissi),'nH, in inaniu'i' followinp, tlint is t(jsay : 4. 'I'liat tlif said iiinrtKagor, iii.-s liiirs, fxi't'iitMiN, adiiiiiii.s- trators or .some or oiu- of tliciu siiall and will well and truly pay iii'onnsc to he i)aid imto the .^aid iiiortga^tc, liis licir.-i.txiciitois, udiniiii-trators or as>iu'ns, the -aid .siiiii of niovn'V in thr ahovti provi.so nicnlioned, with intfrcst for tlic .same as af in-aid, at till' days and titm sand in tln' niaiiiur aliovi- liinitt'd f.ir pi yni"iit tlit'i't'of, and .sjiall and will in evciytliin^' well, faitlifuliy and truly do, ol)s«>rve, jiorforni, fnllil and kfc]) nil and singular the provisjiiiis, jiKrcoinr'nts and stiimlatioiis in the said aliovi prov i.so particularly set forth, a('C'irdiii(.r to the tnio iiiti lit and nuMning- (if these presents, and of the ^aid almM' proviso. //" jii'rsoihil rori'mi lit to jun/ : — Sonu' pV')})osod •iifipo-es in niort_i;'a^i' law, chifily with a \i('\v to tha ^ib'5liti()n ol' ti)t' ahove covennnt, have hccn li'luif the ');it:n'io Li'oislivture in its present session, 57 \'iet.. but lo not seem (f Imve been favorably received, .and (lid not pas3. f oniierly the breach of sucli a covenant created a -s*'ction, in tile tiftli line of siiid siib-sfction, tlif wonl- "t'.xcfpt u|H)n tlic covenants containe-Mecti.Tliilt tlie niortj^a^or has a piiHl title ill fee simple tothe said lands. Coi.lMN 2. 6. And also, that the sai7. (OVEXAiyrs FOH TITLE IN MollTUAnK. 201 tilt; (inliiiary restricted form, are hh eHeetual in workin^j an estoppel lis H recital to the sanjc effect wouM have l)een. Tilt; cases to winch I refer, and which are always referred to as the leading cases on this point, are three : Doe Umi- iirsi'ii V. Mi'i/iTs {(I), Doe Irvine v. }Vr1)stei' (e), MeLetoi v, l.iiiilhiwif). Whether these decisions attrilmtin;,' to the covenants the same etHcacy as positive certain recitals are rijflit (//) it is now too late to intjuire, as th" principle has liccoiiie a fixed rule of the law of property in the Province ol' Ontario, too well established therein to be shaken." CoMMN 1. ll.Andtliut he liiiH tlif rijflit tdciiii- vt'V till' ■'.licl IftiiiN til till' nai'l iiiiirt- 7. Aii.l tliiit I'll ilif:nilt till' mnrt- k,'il^,'t'i' nlliill llil\i' iplift ImsKi'SMinll of till' Miijd lallilM. CoMMN 2. 6. And iilsii tlint tlio Hiiid iiiortf^a^or now liiitli in liiniHt'if (,'ood rijflit, full jHiwcr mid lawful and uliHulutt- Hutliority to con- vt'V tlio Haid landrt, tonenicntM, liercditanit-iitH, and all and sinjjular otluT tliH iirt'niixyH linrfliy convfywl or liorfinlx-fori' nit'iitioiifd or intended ho to lie, with tlifir and every of their iippurtenanees unto the Haid niortjfaxee, liin heirn, executor.i, administrators and assigns, in manner aforesaid, and aecordiiiK to the true intent and meaning <>f tliese ]iresents. 7. And also, that from and after default hIuvII hnpijen to lie made of or in the payment of the Haid sum of money, in the said alxive proviso mentioned, or the int<>iest thereof, or of any part thereof, or of or in the doin^,', ohservini;, performing', fultillin^' or keepinp of some one or more of the provisions, a^'rl•enlents or stipulations in the said ahovt- proviso, particularly si't forth, contrary to the true intent and meaning' of these jiresents, and of the said proviso, tiien, ane lawful to and forlhesaid mortj^afjfee, his heirs, executors, administrators and assi^'iis, peaceably and (juietly to enter into, liavH, liold, use, occupy, jHissess and enjoy the aforesaid lands, tenements, liereditaments and premises liereby convi'yetl or mentioned, or intentled so to lie, witii their appurtenances, without the let, suit, hindrance, interruption or denial of him the said morti^agor, his heirs or ttshij,'ns, or any ether iierson or persons whomsoever. ('') -' O. H. 424 (1832). (') 2 U. C. R. 224(1845). r.0 2r. C.R. 222(1 M-.). i'l) "The Knjflish cases show that a covenant is not suHicient to work an fstoiii,,! ; •• firr I'rouilfoiit, .1., in ('Mss.'huan v. Casselmaii, miiiru, citinpr Heath V. ( nivin,'k. L. U. 10 Ch. 22 (1S74) : Cn.fts v. Middhton, 2 K. & .1. l'.)4 (ISStJ) ; '■••mriil Finance Co. v. Lilx-rator, 10 Ch. D. l.j (ISTS). ^, ' s ■rl ' , ii' / <: ■'!'' ■>-■■- ^ .; 'M J-' ■ ■■[ ^1 202 y,'/;. 1 /. /'/i rollowiiiLC extract from the rect.'ut dceiHiuii in Unlliiinr \, lirookc {/(): — " Wlicii tlio )n()rt;;!i<^oe tuok possossioii tin' interest WHS in arreiir, and the estate of the nioitj;a;;or was in hiAV, at an end. ilis ri:;ht to jtosseHsion then ceasinl, as the contri'.et iK-twcen tlie j>aities pi'ovided. Foi' tlii' iiiort|4a;^'(.' un']),isi' of heepiiiL,'' down the interest, hut the entering" on the land to le;ise or sell in such wise, that tin; ri;^dit of redemjitiou shall he postiioiie'l or destroyed. Tlu' eti'eet of the eai'lier provision as to default in ;;ivinn' the ri^ht to enter without notice, or to take ])ossessi(ai if it caii he ]>eaceai'ly ohtained, is seen ill such ca-ie.s as ])<>( il. (in rrm/ v. Oil';;. \'l A ..v Iv l^l.aii'I Lowe V. Tdfor-I. 1 Api). ('as. 411. " lieiu;;' then, up-u and aft. r the d<'fault, eii'itlel ti possos.sif»n, it was, in my opinion, competent for tin' mort_na'tent for the mort;;an'ot.' to laahi' the hest prcjvision hv'eouM for hi>; own .safety: even t) tlio cuttinj.;' down of trees: and if so, he could confi r that jxtwer U[>on others under him suhjcct always to the rit,;lit of tin' owner of tlu; c',e,!ty of i'edi'ni[ition to call hotli to an accouiit at the [)idper time. (/,) •.:!(). !l. :!iil (is'i:;). |',„v,i. c. il in ;i eii'i', \ cap. Il f )!' tit !!• .Vll •■ , til., .u ; *'iWi (mil ■'•"llVllllr ;-ftli,. „:„■.; .1?^' n l Cai-.TC] ronj.y.iXrs I-OH TITLI: I\ AKfltT'.M.K. 20.} "TIm' poNVor of I'.'.isin^ also i-xists wlioti the inortij^ajLfec takes ni)-!sossion. tlii>ti;'h his K-.-is.; iii;iy nut h'wul the owner of tlu! c'l'iify '*^' iviliMnption. A 'h-msi! so ma li', in case of Millifit-'nt soeurity, il' not wv.vh. j»ui-snant to tluj 1 Uh i>im- vis'), wouM ho subject to thi' rii;'ht oi" the niort^'n^'or to ]ia\' up arrears of intorost au'l ri'sunn." possession. lUit tliat in;5;i!!iT of i"eh"ef is not asknl, nor would it srr\e thi; ]ii;r|) i-e of the phiintitl' in this case: hut wei-e ii the pivci-' point of contention, 1 should (|uostion the rij^dit of tile mort:;a;;or to obtain it in the casi> of n scanty security, v.ht u the inort!L'"a;L;'eo lias In-.n compelled to protect himself bv iiiikiuu' the most provident h.'ase possihii'." ^ m Cc'i.'- IX 1. Ci'I.I MS •_'. S, !'"rfi 8. Aii'I tint fi iinl tli-ar ;nil of i^rant in heino' alisohite co\i'naiits, not iv>!iit'roi to till- act-, of the eovt nantor. With ihi-; .lifi'er- •.•ii'c, the noies ;>,|)j)euded to the corri-.-jionclino- cDv-eiiant.; in ci]). 10'>, "'Dr't. may he read as ap[)lyin^' to th ' eox'^n.-'uts t'i)i' till • ill the p!'>'sent chaptt'r. <''!' >IN' 1. C.-.I.IMN 'J. •••An ltli.it 9. An! ,iho, tliat fr .ni and afr.r d.'f.iuU .^ludl liapp •>! t.ilM- ,''''' ni.ide of or in till' uavnu'Mt of ilir .•<.iii'>>vi.'Mi nifiitioued, or tin- intn-t-l tliiTi^.f, or anv iiaitot ^n^•ll K'li-li Imilr r nioncy or int-TCNt, or of, ,iv in tin' it."'. f "I'lli, f'.nUMry lo tli«' trnc intctit and np^.inin^f of tlicw j rf:'-nti* ail' 1 of till' .-.'lid pnuiso, tl.cn and in fvcry KUtli i^a-i, tlir .-aid iuiirf!;n;.'or, liislii'irH niid a^.-i^ni.-:, luid all iiml every otlu-r i-itmou or p'T-ion" whiHoi'ver having,', or lawfully tiainiin^f, or who «liii!l or nmy !i;ive or hiwf'.illy claiia any e,«tate, n^lit, titk', intere-'t or ^\^. 264 REAL PRol'KUrV STATUTES. [K. S. 0. COLI'MX 1. p ll m m. All.! illsii tli:it tllf Maid iiKii't- giij^'or will prixiiio' till.' titU' (li't'ds cii'mii iMti'il lliTcllllilcf, jiiid ulliiw t'opies tn 111" iiiiult' ;it tlio <'\|iellWt' I'f the iimrt- 11. Atul tiiattlii- sHJd iiiiii't)M tliiin cur- li'llC'V. 12. \w\ 12. And iilso that tin; Haifl iii<)rtrnr or liis licir^ hIi.iII and tliiittlii'-tiiid ^vill furtlnvitli iiisui'H, uiilf^n already iii.surcil, and during' the iiiiiitpipii continiiai»i;c of this scruritv kit-p insiircfl against loss or daiiia''i! tlif liiiilil- l>y hr»', 111 supIi |n-o|iortions upont'acli building' as may Iw rp(|nin'd iii(,'si'ii tln' by till' said iiinrtKajffc, his lifirs. I'xecutors, administrators or .Slid luiiiNto ,^.^,^iJf^s, the niissuagcs and buildiiijfs t-iected on the said lands, tciiinifiits, hcrt'ditani('nt!4 and. pn-inises hereby conveyed or iiuntioned, or intended so to be, in the sum of of lawful money of Canada, at the least, in Home insurance office, to be approved of by the said mort(,'aKee, his heirs, executors, admin. istrators or assigns, and pay all p>emiiims and .sums of money necessary for Huch lairiKwo, as the samo shall become due, and will on demand aHsipn, transfer and deliver over unto the said mortgagee, his heirs, executors, administrators or assign*, the policy or policies of ussurauce, receipt or receipts t'"ieto api)crtaining ; and if the said mortgiigee, his jieirs, executors, administrators, or assigns, sliall |iay any premiums tir sums of money for insurance of the said premises or any part thereof, the amount of siu ;i payment shall be added to the delit hereby secured, and shall bear interest at the same rate from the time of such payments, and shall lie payable at the time appointed for the then next ensuing payment of interest on the said diibt. Tlio most common Form of tuortLfa;reo in.surance in CaiiJi'la is to take out a policy in tlie name of tlie mort'^aoor, and to api)L'n iiiortoao'(M' and the insurer are made subject by addino- the Words, " subject to the conditions of the above mortoaoe clause." "Tills clause is a special stipulation, operative only wtwoen the insurance compaiiy and savin;.(s banks, or other money loaning institutions or individuals to which it "liiy he conceded, usually accompanyino- a mortgagor's p'llicy when loss thereunder is made i)ayable to such %^ 2(i() i;i:al I'ltoi'iniTY srATUTJis. fR. s. 0. jxiftii's as iiu)rt;:^a<>r'es, ami intended as a pvotoction M;,'niii'.t any acts or oniissions on the part ol! tin.' iu.surtil, t!;' inui-t-j^a;;')!', by which th(! insurance ini;;-ht bccDiiK! iiivajjil to such nioi'tt^ai^-or; in wliich event the policy woiil'l continue to cover tlic interi.sts (jT such nK)rt;,'!ii;'ecs, though the insured ni.iy ha\e 'n alto^i'tle-r. "T!ie fiist use of this chiu-^' was hy the Mutun' j.il.' Insurance C'oinpe.ny of Xew \'ork. early in |.S(5(). it was verv e'-.-actint'-niviii Lheconinanies, entirelv nuilif\'iii'' unmiv of tiie most s!L\iii;' stipulatioiis of the ]ioiicy ;t.s i>.-tie at once legally suhro^'atcd to all right of tin- moi'tgagecs under all till- securities held as collateral to the mortgage deht, to the r\'r-\\\ (pI s;ich ]iayi.ient, oi' at its option, the comjiany nuiy y.iy lu the nra-tgagees the whole principal ilue or ti» gro\v 111'' en the mortgage, with interest, and shall thereupon I'Ci'ive a full assignment and transfer of tin; mortgage (_/')_ ii.il all oLlier securities ludd as collateral to thi' mortgage ■I'lit. V)ut no suirli suhrogation shall impaii" the rights of til" uii'itgMgecH to recover the full amount of their claim. '■ // aJ.s() /(> ri/n'r pmrlilrd ifod <,iii-rid, t'lat in the ev'-nt 'if the sai'l pi'iperty heing furth'.'r insureil with this or ;^'ly 'iher ultice, .11 hehalf of the owner or mortgagee, tlie com- I'i'iy, exc-'|it such other insuraiice v,''."ii lire!.' hy tli" mort- „"'ig'ir or owiiiM- shall pro\'e iii\;did, sh;ill only lie MaMe for a riti ' .v- priiportiou wf ar,y lr)ss or damage sust;iiiied. ' Wlure the policy said " loss if any payahle to ^l. as his luteivst iiriy appear." Wilson, C. J., said " 'Ihi /',/'-7'"->''' of •.'I Aii'l ;ivc Hilt ImiiiiicI to niliicc tlic MC'tivity 'vV chf an; iniit \i:<.''\ : \\'i--t- iiwcnu V. ll.iulcy, 2'J t ir. iWJ (1>7."),. ■i I'' J r ' ' h 208 liKAL I'liorKHTY STATUThS. [H.S.O. 'i^. I^l4i i'P: tilt.! i»liiintifr, roFerrod to in the policy, i.s his intoroist as iuort<^a^et', for iilthough the fact of hin hein*^ iiiortjfafTn- is not statetl, it may be averred under the term, ' jis liis interest may appear ' " (/.). Klfcrt of covemnif wil/itml foniuil aasU/nrnent of i>'dirtj — A covenant to insure for the benefit of an incunihnuicrr operates as an eciuitable assiffnment of the policy of insur- ance when etiected. Therefore where a moi-t<;ai;or enters into such a covenant it is not necessary, in the interest ff the niortL;a;;ee, that an assi<(nment of the policy or interim receipt should be actually made ; it is sufficient, if tlir insurers in case of loss have notice of the fact before scttliiii;- witii the morty-aifor, and if after beiuij notiKed of the riulits of the mort<;a<^ee they pay over the insurance money to tin- mort,;^a^or or a transferee of the policy or receipt, they dn so at their peril : and such payment will be no answer to a suit at the instance of the mortgagee {I). " AikI if llie Kd.hl uiitrtijaiicc . . . skull pen (in;i Vi'inn'nirax" : — If the moi't). n\ .f^s I, J' Cai'. 1"'] PROVISO FOR POWER OF SALE. 269-. COI.DIS 1. la Aniltlio saiil liKirt- (.MK'iir ilotli nlfiisi' ti) till- Siiid :illlii>ii'liiiinx ni"'ii tlic >mA VwU vlllljcC't t'l till' s:ii(l provi*!'. h1. tlllit tllf -Mi\ murt- tfiVfi-v nil (Ic. fiUllt v«'r (|Mit claim untd tlie said murtfjagcc, liis heirs, I'xcciitors, administrators and assigns, all and all manner of riudit, title, interest, claim anurt thereof, in ary manner liowsoever, suliject always to tht; said aliove i)ro."is( ; but the said mortgagee, his heirs, executors, administraton or assigns, and tlie said lands, tenements, here- ditaments and premises, subject as aforesaid, shall from hence- foi th for ever hereafter be exonerated and dischargtHl of and from ;dl claims and deniands whatsoever whicli the said m(>rtgagor, his heirs or assigns, might or could have upon the said mort- f gagee, iiis heirs, executors, administrators or assigns, in respect of tiie said lands, tenements, hereditaments and |)remises, nr iiIM'ii the said lands, ttnements, liereditaments and iircmises. It. Provided always, and it is hereby declared and agreed by and between the parties to these jiresents, that if the said mort- gagor, his heirs, executors or administrators, shall make default in any iiayment of tlie said money or interi'st or any part of either of the same, according to the true intent and meaning of these presents, and of the proviso in tli.it behalf hereinbefore contained, and calendar months shall have thereafter elapsed with- out such payment iK'ing niiwle (of which default, as also of the cDiitiiiuance of the said jirincipal money and interest, or some part thereof, on this security, the pnnluction of these presentu shall be conclusive evidence), it shall ami may l)e lawful to and for the said mortgagee, his heirs, e. editors, ailministrators or (txniinii, after giving written notic(i to the said mortgagor, his heirs or .-issigns, of his intention in that behalf, either personally or at his or their usual or last place of residence within this l'ro\ iiice not less than jirevious, without any further con- sent or concurrence of the said mortgagor, his heirs, or assigns, to enter into possession of thesuiil lands, tenements, ' i'reditamentH and |)remist's hereby coiiveved, or liu'litioned or inteliili'd so to lie, and to receive and take the rents, issues and pmlits thereof, and whether in or out of |K)sseHHion of the same, to make any lease or leases tliereof, or of any jiart thereof as he shall think fit, and also to sell and absolutely dispose of the said lands, tenements, liereditamentH and premises hereliy conveyed or mentioned, or intended so to 1m', or any jiart or parts thereof, with the appur- tenances, by imblic. auction or private contract, or partly by ■'*« ^ ? h. B ■ •i70 llH.iL l']liU'i:nTY WATUTHfi. n?. s. 0, ptililic uiK.'tiuii iiii'l jiiirtly l).v privati' cniitniot, a,n to liini Nhall Nt'ciii iiioct, iiiid to C'liivi'y iiixl iii^.-'iift' tlio siUiH' wlifii so .sold imt,, tlii(on8ilil«' for any loss wliicli may ari^c liy rcasi.n of any such loasing or salt; us aforesaid unlens th« same slmll liappen by reason of liis wilful nej.:leet or default ; ,nid it i« lierehy further a^freed Intween the parties to th".se present-;, that, until siudi scU' or salen shall lie made as aforesaid, iIk, said nKirtga^ee, his heirs, e::'>(>ntors, administrators or ns4lj.'iin siuill and will stand and l)e ])osst'SMed of and interested in the rents and profits of the said lands, tenements, heicditainciit^ and premises, in case he shall take ])OH3ession of the saiiK! on any default as aft(resaid, and after such sale or sales shall stand and he possessed of and interested in the money to arise .imi he produced !)}• such sale or sales, or which sliall hr neeivcil by the mortgag(>e, his heirs, executors, administrators or asHi(fii<, l)y reason of any insurance I'lion the said premists or nny [lart thereof, upon trust in the first jilaue U. pay and satisfy tlie om^ anil charges of preparing for and ma'viiig sales, leases and oim- veyances as aforesaid, and all ottier costs and chargis, (lainiii,"'i< and ex|tenses which the said mortgagee, his heirs, execiiters, administrators or as-^igns, shall hear, sustain rir lie |)iit to for taxes, rent, insurances and repairs, inid all other costs and charges which may he incurred in and ahont the exeouti'in of any of tlie trusts in him herehy rejiosed, and in t'le iii \t place to jiay and satisfy the principal sum of nior.ey and ijitercut hereby secured or metitioned, or intended ho to be, or s' iii':'.!i thereof iis shall remain due and unsatislied up to and inehisivt' nf the day whereon the said principal sum shall be puid and >ati>- fled ; and after full jiayment and satisfaction of all such Minisuf money and interest as aforesaid, upon this further trust llmt tin- said mortgagee, liis heirs, executors, ;idministrat.ors or assigns, do and shall pay the riirplus, if any, to the said mortg:i'."ir, liis executors, administrators or assigns, or .".s he shall direct :ini! a|>point, and shall also in such event, at the ri'(iuest, costs ami charges Ml the law ot the said niirlgagor. his heirs or a«si}:ii-, cirtucy and .is.-iire unto tlie said inoi'tgagor, his heirs or nssi};iis, or to s\ich person or )jei',-ons as he shall direct and appoint, all such jiarts of the said lands, tenements, hereditaments nni! premises as shall remain unsold for the purposes aforesaid, fr li and .absolutidy discharged of and from all esla' ', lien, diiirgt and incimibrance whatsoever l)y the said mort%-ai,'ee, iii« ht'irs, executors, administrators or assigns, in tlie meant i lue, ce ii» nn person who shall lie ie.|uireil to make or execute any such a-^sur- ances, shall be comiiidled for thi; making thereof to go or trau-1 from his usual place of abode ; I'rovided always, and it i^' li"t''''v Cap. 107.J owhu (IF '■'i. 271 fi'Tllicr ili'cl.'ii.' ! Jiinl .ttfrced liy hiuI Imiv/ciii tli.' |ijiit:.':i to tlu'-<«' pre-itiif'*, liiiit, \\'- iinil otlior l!n' jK'Wf'ri uikI imiviNiuiiH cortivin"!! in tlu'«i' i>ri3*'iitc, the miiil iiii>it;,M)?t'e, !ii(< hnir«, ••xecutor«. iwtiniiii»tniUirs or ii:>'all Imvt and l>c ii\! ith'tl ti' III;- ri^lif '■: 'urcclnsiiiiM.f the diiiity of n'di.rniiti'iH ci' tlic mw\ lun'tifa^,! i, lii^i li.-irs .'iiid .is.-.ijfri.s in thn siiid l.iiiiN, t<"i' iiH'iitw, licrcdiluni.nts and pn inisco as fidl> ami flfri-tiiiiily !<>> Ix' iiii;,dit Iium" n.\-->i(it,i;d uiid enjoyed t!if .«iuiii».i in fiisc t'le jiower (if sul", iind the Dtlii r furni'T [iimvIhch-'H iiml trusts Incident tlieretn ii;i(! nt.it liit n In lein CMiil.'.ii'e.'. Till' flt't'i't (jf tlu; )ir(!.si'iit clausi: ainl >!' t'li.' tlrcisioiis tlii'rci;ii !i;is bi'vii consiilfreil 1>y the autlior in .•uiotlp i- \V(.ilv iiinit: i'liliy tliiui t'fui ixirtini'Utly )"• d-.rw:- liorci {[>< W't'. iiiav, li ('. L. T. .!(•. l.y .\lr. A. 0. vralt, -.iii.K' I'' (.pi''- l."""! '^ Ui ..-Mt ' "■ V. (Jrant, IS S. ('. |{.' UC-i (KS'.Ht) ; >:torv t>n K(). 101!) ; Kcll* v v. Imperial ''"■"' C(i., II ,S. C. If ;-)l(;(lH.ir»); Oan.'ida K'Pn.inent v. Teeter. 1!> O. H. "\ •■ h ^ I ' '- >1 h % V', ■'V ■J' ■■ ', r tl i ?|i:: m hi " 272 JtEAL I'JtOj'EItTY STATUTES. (R..S.O. ulilu forci-s to shew that powers of sule without noticu aiv laerdy vo'ul, »ih oflendiuf^ (Ufulnut the rale.H of eqalfi/ ia hro jmrllculnrs ; they fetter (If the;/ *t<> not aetmlUj ilestroi/) the equity of redeniplion, antl they fill wUh'ni the category of anconsciondble hiuyn'inf^ (t). New trtixtee ui n) ; .Tciikiiis v. .Inn--.:' tJiff. ".)!) (l.S(>(»); Tcoincs v. Cunsi-t. .S Atk. 'Jt!l (174.")); JeiiniiifrH v. W'mI- Vt'iii. .^2i» (170.")) ; Uruad v. Sclft-, 11 W. K. 103(1 (lSti3) ; ]5arrctt v. Iliirtl.y. L. R. 2 E(i. 7!>.") (IHOti) ; Mill.Tv. Cook, L. K. 10 Kc). (Wl (1«70) ; Salt v, M:ir (luess of Nortliivmi>ton, L. 11. 1H<,)2, A. C, 1, aiul some of the cases citi'd mi !•■! tne present clause. (0 See recent ca.se Cliatfield v. Ciinniiirfliani, 23 O. R. l.W (18!»3). Wli.r. the iK)\ver was a power exercisal)le without notice. (i() l?y R. S. 0. 1887, c. llOs. 3. (.) lie (Jilinour and White, 14 O. R. (J!)4 (1887). (I-) 1(J O. R. 15 (1888), Street, J. R>V ". .rf^^ P (fs L* Cap ll»7.] .VAV7i.S>77')- l\)l{ K.XTKV 273 2\C('('XHitij for enti'y on the hind: — In Clark v. Harvey (.(•) the power was : " Provided tliat tlie mort^a^a'o on (lel'ault lor one day may, without any notice, enter on and lease or sell saiil lands." The <|uestion arose could the. ])i>\ver he e.xerciscd before entry made upon tlie land, (lalt, C.J., held tiiat tlie case was distin^^uishable from Re liilrhi'iM iiiut Islaiul, and that an entry was not necessary prior to sale. On an appeal the court was e(|ually divided. The opinions of the Judj^es in this case are valuable as shewin;,' the very opposite methods tliat may be employed ill intt'rpretin;^ instruments that purport to be made in imrsuaiiee of the .Short Forms Acts. I'uirer eurrdsahlr tm one niontlin default : — In He ilrci'u and Artkln (//) the power was : " Provided that the Slid in(»rt s^ w.- (/. V ^ ^ I 1.0 I.I Ilia IIM IM |||m "" 2.0 1.8 1.25 1.4 1.6 ^ 6" — ► Photographic Sciences Corporation \ A ■r^ ■^ '^ s \ o^ % 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 Cfl» i ip 'n I :<^ 'I "I •274 ^^ , N,- 1 1 RKA L I'llOPEn TV ST A TUTKS. [r. j^ q Exercise of jiower of sale cannot he treated as a nul- lity : — In Patterson v. Tanner (a), the mortgagees sold under power to one of the original mortgagors, who had disposed of his equity. The purchaser having refused to carry out his contract, the mortgagees did not insist upon his doing so, but tried to fall back on his original covenant. Mr. Justice Street, however, decided as follows : — " The mortgagees, having exercised their power of sale and entered into a contract to sell the mortgaged premises, cannot be permitted without some sufficient reason to treat the sale as a r.'ullity, and fall back upon their mortgage as if the exercif ft the power had been a mere matter of form. See the w^tp.tut try form of the power of sale at p. 972 of the Bevirrd Staout' o* Ontario." *' Moi\'(jagu: , s heirs or assigyis" : — Execution cred- itors of the mortgagor are "assigns" (b). "At his or their usual or last place of residence" :— This permits substitutional service at the residence, though the mortgagor may be within the jurisdiction. But even if such is not the proper construction of the statute, it is a matter so doubtful that the solicitor who bona fide acted on that view of the statute should not lose his costs of so effecting service (b). "Not less than 2:>revioii8" : — See Grant v. Canacli Life Ass. Co. (d). " To sell and absolutely dispose of" : — See BeaUy v. 0' Connor (i;), Rodburn v. Swinney (/), Smith v. Spears {(j\ Stewart v. Rowson (h). la) 22 O. R. 3GC (1892). (6) Re Abbott and Medcalfe, 20 0. R. 299 (1891). (c) O'Donohoe v. Whitty, 2 O. R. 424 (1882), 20 C. L. J. 146. (d) 29 Gr. 256 (1881), when notice concurrent witli default. (e) 5 O. R. 731 (1884), partly cash, partly credit, (/) IG S. C. R. 297 (1888), sale on credit by agent under power of attorney. {fj) 22 O. R. 286 (1S92), sale by way of e.\change. (h) 22 O. R. r»33 (1H92), attempt to sell timber alone under power. Cap. 107.] EXERCISE OF POWER OF SALE. 271 " Bi/ public auction or private coiuract " : — In the recent case of Chatfield v. Cunningham ii) it was held that a sale by private contract, after a foreclosure, which had been opened by action on the covenant, was a valid exercise of the power of sale, a previous attempt to sell by public auction having proved abortive. " To pay and satisfy the costs " ; — See lie Crerar and Midr (j), Re McDonald, McDonald, and Marsh (k), Be Crony n, Kcw and Betts {I), O'Donohoe v. Whiffy, cited supra. "And shall pay the surplus " : — See Green v. Hamilton Provident Loan Co. (on), Harper v. Cidbert (n), Re Cros. kcrry (o), Discher v. Canada Permanent L. & S. Co. (p) Muclennan v. Gray (q), Re Kingsland {r), BoiUton v. Row- laml (s), Reddick v. IWiders' Bank of Canada (t). For distinction between the powers of taking posses- sion and leasing under proviso No. 7 and proviso No. 14 see notes under No 7, supra. Column' 1. l"). Provid- (•'1 that the uiurtgafree Column 2. 15. And it i.s further covenanted, declared and agreed by and between the jiarties to the.se presents, that if the said mort;i:aRor, his heirs, e.xecutors or administrators, shall make default in (0 2.3 0. R. 1.53 (1892). Street, J., following Carver v. Richards, 27 Ueaw 4S8; Ktlly v. Imperial Loan Co., 11 S. C. R. 51G. (}) 8 P. R. 6(5 (1870), taxation by subsequent mortgagee. (A) 8 P. R. 88 (ISru), no taxation where costs already paid. [I) 8 P. R. 372 (1880), ditto. (m) 31 C. P. 574 (1881), nature of claim to surplus. (h) ,') 0. R. 152 (1883), payment to apparent owner of equity. (o) 1(! O. R. 207 (1888), dower in surplus. See also under Covenant No. 1, fUfiru. (;)) 18 O. R. 273 (188!)), dower in surplus. ('/) 16 A. R. 224 (1889), {nee the Ontario Dig. 561), dower in surplus. ('•) 8 P. R. 77 (1879), payment into court. (*) 4 0. R. 720 (1883), costs in action for account of surplus. [t] 220. R. 449 (1892), jurisdiction of County Courts as to surplus. ■> i ■ ! " ■ ^,1' >-, i. 1 ■^1 *l' '11 h'. "'U J> > 576 JtEAL PROPERTY STATUTES. [R. S. 0. Column 1. Column 2. m.aydistrain payment of any part of the said interest at any of the days or f()r arrears times hereinbefore limited for the jjayment thereof, it sliall and " ' *^ ■ may be lawful for the said mortgagee, his heirs, executors, administrators or assigns, to distrain therefor upon the ■•uid lands, tenements, hereditaments and premises, or any jwrt thereof, and, by distress warrant, to recover by way of rent reserved, as in the case of a demise, of the said lands, tenepicnts, hereditaments and premises, so much of sucli interest as sliall, from time to time, be, or remain in arrear and unpaid, tci^etlier with all costs, charges and expenses attending? such levy dr (lis- tress, as in like cases of distress f(jr rent. Written v. printed provision'^ : — In McKan v. Hoivard (u), the mortj^^age was in the statutory form except that immediately after the p'-i'ited covenant for payment the following words w^ere ii i^erted in writiiij^': "It being understood, however, that the said lau Is only shall in any event he liable for the pajanent of the mortgage." The distress clause I'emained unerased in its usual place, viz. after the covenant. The question then arose could the mortgagee legally distrain ? Boyd, (•. — " The mortgage in this case is in the usual printed statutory short form, with certain written additions. There is the distress clause printed, but there is a prior written clause providing that the mortgagee shall look to the land alone for payment. These are inconsistent and contradictory provisions, so that the question arises which shall prevail. For two reasons the earlier controls both, because it is the Urst in the deed, and because it is in writing. The prin- ciple of construction is thus laid down by Lord Ellenborough in Robertson v. French, 4 East, at p. 136 : ' If there should be any reasonable doubt upon the sense and meanin<; of the whole, the words superadded in writing are entitled to have a greater effect attributed to them than to the printed words inasmuch as the written words are the iunnediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are (i«) CO. R. ia5(1883). IMk- Nf^ Cap. 107.] A VCKLKIiA TJOX OP TIOXA L. 277 a ceneral formula adapted equally to their case, and that of all other contracting parties upon similar occasions and subjects ' (f). " Asain, the rule of law is that in the construction of deeds where several parts are irreconcilable, the first shall^ prevail, the reverse being the rule as to wills, where the last governs" (w). Column 1. 10. Provid- < (1 that in default (if tliepayiucut (if the iiiter- I'st hereby secured, the principal iiereliy se- cured sliall lje(NJiue payable. Column 2. 16. Provided always, and it ia hereby further expres.sly declared and agreed by and between the jiarties to tlieso presents, that if any default shall at any time hai)i)en to be made of or in the payment of the interest money hereby secured or mentioned, or intended so to b£»f'or any part thereof, then and in such case the jirincipal money hereby secured or men- tioned, or intended so to be, and every part thereof, shall forth- with become due and payable in like manner and with the like consequences and effects, to all intents and purposes whatsoever, as if the time herein mentioned for payment of such principal money had fully come and expired, but that in such case tlie said mortf^agor, his heirs or assigns, shall on payment of all arrears under these presents, with lawful costs and charges in that behalf, at any time before any judgment in the premises recov- ered, or within such time as, by the practice of the High Court, relief therein could be .itained, be relieved from the conse- quences of non-payment of so much of the money secured by these presents, or mentioned, or intended so to be, as may not then have become payal)le by reason of lapse of time. Acceleration optional, hut mortyagce hound by his option : — " It is a good rule to apply as far as possible in all proceedings, that where anything is sought by a party he should be treated as prepared to receive what he asks for (,»•) ... In the case of a mortgage security if the plaintiff seeks to recover for overdue interest alone let him do so. If to get in the whole sum upon the default then let him claim that " (^). (v) S). Relief against acceleration: — The above decision left considerable ambiguity as to whether a Court of Equity would relieve against the acceleration of the principal. Thus Haggarty, C.J. Q.B., said : "I do not clearly under- stand the exact state of the law on this subject in our Court of Chancery looking at the cases from Knapp v. Cameron, 6 Gr. 559. . . . down to Cruso v. Bond, I v4 ^ (z) C. R. 359, 360. (a) The present covenant. {b) Boyd, C, in Cruso v. Bond, 9 P. R. Ill (1881). -J f IH Can. 107.] AVCELEHATIOX. 279 and Tijlee v. Hlnton. I fully concur with the expression of opinion of Moss, C.J.A., at p. 60 of Tylee v. Hinton (c)." The opinion referred to is : " If it is a part of the barijain made upon a sale of lands that the unpaid balance of the purchase money shall be secured by a mortgage providing for payment by instalments if these pay- ments are made punctually, but accelerating the payment in tlie event of default, I am not at present able to perceiv^ that the Court of Chancery could, either by virtue of the General Order or its inherent jurisdiction to relieve against penalties and forfeitures restrain the vendor from insisting upon payment in full upon default heing made ((?)■ " The Judicature Act (e), gave the High Court jurisdic- tion to relieve against penalties, forfeitures, etc., but the acceleration of the principal does not seem properly to come under the scope of such relief. As Knight Bruce L.J., says in Sterne v. Beok (/). ' The deed provides for payment of the debt by instalments . . . and further provided that in a certain ev^nfc payment of the debt should be accelerated. It did not provide that the amount pa3'able should be increased, but only provided that instead of being paid at future periods with interest up to those periods it should become payable at once with interest up to that time. To a proviso of such a nature none of the principles of equity relating to relief in the case of penalties are in my opinion applicable.' " Acceleration for other causes than non-payment : — In Graham v. Ross (r wliu shall, or may lawfully claim by, from, under or in trust for hiui, her, them or any or either of them. R. S. O. 1877, c. 104, Schedule B. (h) Per Haggartv, C.J., Q.B., ib ; Graham v. Koss, is followed in WiN.u v. Campbell, Ij P. K. 2CA (18'J3) by Boyd, C. DEVOLUTION OF ESTATES. The cluipter of the Revised Statutes, 18S7, known as "The Devolution of Estates Act," is composed of several very distinct enactments, and represents very di tie rent .sta<,fes of the law relating to the descent of property. First, there was the law of descents as existing in Upper Canada liefore the first day of Jul}-, 183-t, and represented by section 12 infrii. Secondly, there was the law of (leseonts introduced into Upper Canada in IS:}-! by 4 Wm. IV. c. 1 (a), and represented by sections 13 to 8G infra. Thirdly, there was the law of descents introduced by the Act to abolish the Right of Primogeniture, etc. (h), and represented b}^ sections 27 to 57 I afr•(«; 29 C. L. J. at p, G19, buinBr a review of the Act aiid its ameud- n1 f 282 nhJAL I'ROl'EItTY STATUTJiS. 1^ r-'l p: 1 Mjjl^j^ " No greater channje has been effected in tlie law by unv recent legislation. When its far-reaching consequences are properly apprehended, it may bo found that the absorption of realty and personalty tends to systematize jurispru- dence in much the same way as the absorption of law by e(|uity (e). The real representative : — The person entitled to repre- sent a deceased owner of realty, in respect to that realty, has undergone so many changes of character and name, as to have excited nmch speculation and not a little mirth on the part of the legal profession. Thus, prior to 1.S34, the "real representative" was the person well known to the law of real property as the heir-at-law. From bS34 to 1852, somewhat different rules were introduced for ascer- taining the rightful heir-at-law. The abolition of primo- geniture, taking effect in 1852, allowed a group of co-heirs in place of the person formerly known as the heir-at-law. As this last-mentioned state of affairs had its inconveni- ences, an Act was passed in 1857 making the Judf^e of the Surrogate Court the real representative for all real property within the county, etc. (/). Then came the Act, of 1886, vesting the real property mentioned in the Act, in the legal personal representatives (g), and empowerin<^ them to dispose of and otherwise deal with the same (70. This was supplemented in 1887 by a provision that the personal representative shall be deemed in law the de- ceased's " heirs and assigns" (i). But this has again been qualified by an Act of 1891, which vests the real estate not disposed of within a year in " the devisees or heira bene- ticially entitled thereto" (j). Nor was the last-meutioned (e) ne Reddan, 12 O. R. 781 (1880), Boyd, C. (/) 20 V. c. 65 (Can.), now R. .S. O. 1887, c. 104, s. 4, which see. (i/) Section 4 (1) iiifm. (A) Section 9 infra. (0 50 V. c. 7 (Ont.). s. 35 ; 8. 10 infra. U) 54 V. c. 18 (Ont.), 8. 1. WHO IS REAL RKPRKSEyTATlVKt 283 Act Hnal ; for the past year has brouirht forth " An Act respectiiif^ the time for the Vesting of Estates in Heirs and Devisees {k). Who, then, is the real representative of the property of pel-sons dying since 1st July, 1886 ? Taking all the above- lai'utioned provisions as consistent, we may say that (1), Dming one year after the owner's decease, in the first place, the Judge of the Surrogate Court is the real ivprcsentative ; then, the position shifts to the personal ivpiesentatives, i.e., persons to whom proV)ate or adminis- tration is granted ; and (2) after one year from the owner's il.i'ceas'', the real representatives are the pei'sonal repre- sentatives, if they file a caution ; or if they do not file a caution, then the position shifts to " the devisees or heii-s beneficially entitled thereto." Doubtless, the phrase " heirs beneticially entitled thereto " stands for the persons among wlioni the pi'operty would be distributed according to section 4 (1) infra. (v)5fiV. c. 20(Ont.). r H**™-;^f i i "I w / ^Hi m- f ■ ! L i ^: ; M R. S. 0. 1887, CHAPTER 108. ■*■"*■ of 'Ontario, I Tliis 41) V. c. 2-2 "Dcr, the 2. Sectioi ^ V i R. S. 0. 1887, CHAPTER 108. An Act respecting the Devolution of Real Estate.. SMOin-'IITI.K, s. 1. I AlI'l.liATIKN OK SKCTH. 3-10, ss. 2, 3. I i'Unl'KllTV TO HKVOLVK ON rKKSONAF- HKi'llKSKNTATIVK, S. 4. DlsTllllilTlo.N Ob' rmtPKHTY OK MAH- lilKl) WOMAN DYINU IXTKSTATK, s. 5. l)I^TH^U•TIO^• OV ESTATK ok I'KHSON liYINO INTKSTATK AND WITHOUT issl K, H. (i. Al'l'I.ICATlOX OK I'KOI'KUTY IN I'AY- mknt ok dichts, h. 7. Sai.ks ok ink.'.- ;.i' kstatk, s. S. I'DWKli- OK PKKSONAI- KKl'KKSENTA- TIVE OVKH HEAL I'HOI'EHTY, H. i). rHHSONAr, HEritEHKNTATIVEH T( » I'lV DEEMED IN LAW IlElliS AND AfS- SKiN.S, H. 10. InTEUI'HETATION ok TlCliMK IN SEC- TIONS ]2-'-'(), s. n. Descents hkkohe 1st .Ui.y. -'M, s. 12. Descents hinck 1st .Tri.Y. I.s:{-1, ss. 13-20. Descents between 1st .Tii.y, 1834, AND 1st JaNITARY, IHi'iS, SS. 21 -a;. Descents since 1st January, isr/i, ss. 27-.")7. TTER ]\IAJESTY, by and with the advice and consent -^-L of tlie Legislative Assembly of the Province of ( )ntario, enacts as follows : — 1, This Act may be cited as " The Devolution of Estate i Ad,'" Short title. 4'.lV, c. 22, s. 1. ''Devolution" : — For meaning of this term see section S infra and notes thereunder. 2. Section.s 3 to 10 inclusive of tins Act shall api>ly only to Apiilica- the estates of persons dying on and after the 1st day of .July, tion of ss. ix^ii. 4'J V. c. 22. s. 2. ht day of July, 1880 : — This was the date tixed for cmiinencement of 49 V. c. 22 (Ont.) "Dying on or after "; — The result of this phrasecjlogy is that, no matter what the date of the will, the date of \ if i.fi: 286 HEAL PROPERTY STATUTES. [R.S.O. Instates to wliicli MS. 3-10 ajiply. the testator's death determines whether the Act applies or not {I). 3. Subject as above this and the next seven suctions of thii Act whall apply :— (ft) To all estates of inheritance in fee simple, or limited to tlie heir as special occupant, in any tenements or hereditaments in Ontario, whether corporeal or incorporeal. " Or limited to the heir as special occupant " ; — Wiiere a man dies havinf^ an estate pwr autre vie (for the life of another), the tenancy as special occupant may arise. Wharton says of it : — " Where an estate is granted to a man and his heirs during the life of cestui que vie, and the grantee dies without alienation, and while the life for which he held continues, the heir will succeed, and he is called a special occupant. See 7 Wni. IV. and 1 \. c. 26, ss. 3, 6 " (7)i). ('') To chattels real in Ontario. " Chattels real " .•— " Chattels real" saith Sir Edward Coke {n), " are such as concern, or savour of, the realty ; as, terms for } ears of land, wardships in chivalry (while tlk' military tenures subsisted), the next presentation to a church, estates by statute — merchant, statute staple, eh'ijit, or the like : of all which we have already spoken. And these are called real chattels, as bein<; interests issuin<: out of, or annexed to, real estates; of which they have one quality, viz., immobility, which denominates them real: but want the other, viz., a sufficient, legal indeterminate duration ; and this Avant it is that constitutes them chattels " (o). (c) To all other personal property of any person who has died domiciled in Ontario. ileeidci •'esceni iiiay In •sneeessi f'»al»an( "lid im> "On iui ;'i'eat eh l*« I ■-'■ I'. (0 Cf. Tillis V. Si)rinRer, 21 O. R. 587 (1892). {in) Law Lexicon, 7th ed. 784. (n) 1 Inst. lis. ('i) Blackstcine Com. II. 386. (v) \\\... * M Clip. !">•] ESTATES IX ONTAIilO. •2H1 '■ la Ontario " ; — It will be noticed that as to real property and c'lattelfs real, they are to be .situated in Ontario, while as to other personal property it may be situate elsewhere than in Ontario, provided the owner has (lied (htiiiiclled in Ontario. This distinction illustrates one (,f the many difficulties that interfere with a complete assimilation of the laws of succession to real and per.sonal property. Mr, Westlake, in his work on Private International Law, savs : — " Where the court of a Jeceased 'persim's lost ihmicile has had an opportunity of declaring who are entitled to the beneficial interest in his personal property, sul)ject to ])ayment of his debts, funeral expenses, and expenses of administration, its authority is reo-arded in Euiilaiid as final, whether the question arises on a claim to a uTiint of administration, on a claim to be heard as contra- dictor to a will propounded for probate, in the distribution (if the English assets after payment of debts and the other expenses above mentioned, or in any other way " {p). but of realty and immovable property the same autlior says : — " All (juestions concerning the projierty in iiinnovables, including the forms of conveying them, fire decided by the lex situs. . . . English real estate descends on intestacy o,ccording to English law, whatevei- may have lieen the personal law of the intestate " (q). In order, therefore, to completely assimilate the laws of s;u\'essiou as to realty and personalty it will be necessar\- to abandon the distinction between property in immovables lud property in movables. On this point Savigny says : — On impartial consideration, it must be admitted that the Ljreat changes in respect of property and connnerce which h- ' ^'1 •■■U' f/') -M VA. s. (10, p. 95. Cititiiig : Crispin v. Doglioni, ii .S. & T. OO '}^>^\\ L. ]\. I. K. it I. A (18G()). .S>c further /^■ Triifort, Tran'orcl v. Blanc, ■;'iCli. 1). (i(.iO(l.SS7) , Lynch v. Provisional (iovrnment o' I'arag-uay, L. 11. - I'ro. it Div. UlJS (ls71). (7) Westlake, 3rtl Ed. ss. 156, 108, 178, 179. h I)' .1' jc 288 A'/iMi PROPEItrY STATUTES. [n. s, 0. liave taken place in modern times, tend to tlie abandonniont of that sharp distinction " {r). Further, the same autlior— in speaking of the opinion which " adopts the lex rei situe as to immovable property, and for all other effects (movalile property and obligations) the law of the domicile of the deceased " — says (n) : — " All the reasons urged against tiie previous opinion {() are valid against this, only in a less measure, because it differs fi-om the correct one (u) in a less extensive sphere. This opinion has prevailed chietiy since the sixteenth century. In Germany it has been more imd more displaced since the eighteenth centurj'. On the contrary, it has survived till our own time in England and America (r), as well as in France. It stands in connection with the general distinction, which is firml}^ maintaincil in the practice of these countries between movable and immovable estate." Provided, that uU real or personal property compriseil in any disposition made by will in exercise of a general testamcntiirv power of appointment shall be deemed to he within tli>' jirovisions of this section, if otherwise applicable. 4!» V. e, 'li s. 'S. General textmnentary iDoiver of (qipoi iitmcaf : — "An important distinction is established between general and particular powers. By a general power we understand a right to appoint to whomsoever the donee pleases. By a particular power it is meant that the donee is restricted to some objects designated in the deed creating the power, as to his own children. A general power is, in regard to the estates which may be created by force of it, tantamount to a limitation in fee, not merelv because it enables the dond' (/■) Private International Law ; Translation by Guthrie, ISG'.*, s. % «tfon, as far as concerns pure rllf . " °* *'"= P'-«»»t inheritance in fee simple "'Yf^' " '° '"^'«" "=""»« of testa,„entary powers (« hik ITf ^- '^r™ ""<'«'■ g<">eral »n.U.,tate3p.. „,J . thel hT"'''", *" '^^^ ^''"P'^)' «'o «'»i ?«« t,.-. is still aliVe K, ? T"^" '' '''"'<'' ™Pertj- t-ta^entarypowe^lImL " **" "^ Particnlj- »^v „,„;„,, ™°JP;°^"y •» »fo«,.id which i, VMM i„ p »* by l.i.n, .hairoThtl.Th'T,'' t?°''"''"""'""«S tote? J..™.., „, hi, ^,^,, „""'"■; •" ''"">. »nd ,„bject .a fhe ""■ *'M.d of i, h„„,.„ ^ hi Si If"™"' """^' " » . '^"'-"^' '■'lidue of real ,n„7 " °° JMcuity in ad nin era ionTr;''*'^-" There ™f e of the real and persot, Tt *^*':""'"<'" «' the t««tod as one fund and a^^' f^t ? ' " '^ *" *" be „ ''"/^'I'^i'een.akegoo.lti,^ ,! ^**- «»Pl«mly expressed inten on ^7- , ".PP-^"''^ '» »e that ^ 290 liJCAL pROPKirry .statctj-j-s. [R. s. 0. the deceased as if the same were personal property. Tlie Act does not say it is to devolve upon them so far as it h,is not been disposed of. They take it absolutel}^ subject to the payment of debts, and debts being satisfied it is to Ije ' distributed ' as personal property is distributed, except sd far as it is disposed of by deed, will or other effoctual di>>- positi">n. If it has been disposed of by will the pei-somil representatives, when the debts are paid, or if there are no debts, have the bare legal estate for the devisee as the learned Chancellor says in the judgment below. " The latter is then the beneficial owner, but not luivini' the legal estate he cannot, whether the debts are paid or not, make a good title without a conveyance fi-oia that person in whom the legal estate is outstanding. If the debts are paid or there are no debts, he may compel such con- veyance, but the purchaser is entitled to it, as he nuist iiave both the legal and beneficial estate to complete his title " (:l Title in -isecs after one year: — The effect of the foregoing decision is, of course, modified by the provisions of 54 V. c. 18 (^Ont.) (a), enacting that the realty undisposr! of within twelve months after the death of the testator or intestate shall vest in the "devisees or heirs lieueficially entitled " without any conveyance from the executors or administrators. Are devii^ce!^ necesmry parties ■ — " I am of opinion u). (i) Osier, J. A., in Martin v. Magw, IS A. R. ;!88 (181)1), r.'versint: D O. R. 705, wliich trcateci tlu- 'joiiit as a tiuestion of conveyancf, not of title. ((() Section 1, which again i.s nuxlitied by uO V. c. 20 (Ont.). &<■ in/'''' '^^ text of these Acts. (//) Robertson, .1., in Malcme v. Malone, 17 O. R. 103 (1S8!)) ; an action t recover dower. ^[iriii' the ""t null pi'teticai aiise ]■), I '•/);.J ^"'■is.siiiij h the rh, ^') Nt,J "flit,,,.,. ' llu *^^.V^^ Cft;i. ln<.] '^'''"'^■''OI^^ A:,n TRUSTEI^S. Hus last c.te.l decision was ^- '"" """" •■"""■''iht«l areso n "r ''"'™""' ''■^''''^. if l"-«'i"'' i"il.orta„ee i, tl,, ""'r'"""'^ "'^ "»' '" '« "f "i- i» tl".s actio,,/' ""'""°" -^f ™»l' .|Ue»tio„s as ''':;; "'-''-'----c'L^rrtC'-:-; Miireiii. -^ ifliolsoii, L TJ j i' ... ' • „, ' • ^^- ^ ^''- •^"•Ml.s.iD, .„,! ,,,.,,,,. , \ ■If V'l" \i i ^ > I +1 1^ 292 iZS^Z/ PROPERTY STATUTES. [R.a.o. is-;.'- aware of in any legal writing, is the expression ' distributed' used in reference to real property " (f). Peri^onal property in this and in Surrocjate Act: — In Re Nixon (g), the question argued was whether since the Devolution of Estates Act the words " personal estate " in s. 31, 8-S.2 of the Surrogate Courts Act, R, S. 0. c. 50, are to be taken to include real estate. The decision of Boyd, C, was in the negative : " By the Surrogate Act, probate shall have effect over the personal estate of the deceased in all parts of Ontario : R. S. O. c. 50, s. 18, s-s. 4. By ss. 30, 31 of the Act, contests about probate may be removed to the High Court, but not unless the personal estate exceeds S2,000 in value. The personal estate here is much less, but if land is included, the total estate exceeds .$2,000, The testator has died since the Devolution of Estates Act has come into operation : R. S. O. c. 108 ; and it is urpd that the old distinction between realty and personalty iv lo longer significant, but the whole estate is now to be admin- istered as personalty, and that the test in removing to the hij;her tribunal is the value of the whole, and not merely of the personal estate. It may be that the Legislature would be disposed to strike out the word " personal " in s. 31 of the Surrogate Courts Act in order to better adapt its provisions to that of the Devolution of Estates Act, but I do not feel clear that it is the province of a judge to reject it. The distinction between personal and real estate, so far as nomenclature is concerned, is kept up in both statutes and notwithstanding my first impression durintr the argument, it is better to let the words as they .stand have their appropriate effect." The judicial hint to the Legislature to strike oat ' ' word " personal " bore fruit in the following year, i«r .' V. c. 17, being " an Act to amend the Surrogate Court: (/) Be Wilaon and Toronto Incandescent Electric Light Co., 20 0. K. 397-402 (1891). Faloonbridpre, J. ('j) 13 P. R. 314 (1889). ''ippIio(| Boyd, tion is is V. t'le ]), '/') .S,| '"urO, ,/, '"'''"crilH. ,?"'"' to ej •■';"!'" Ic'l .s,l ft y staiul Couvt^^ 20 0.R- Cai'. l"**] -' I'l'OIXTMKXT OF A D.\f/XJSTnA TOR. 293 Act " expanf(ed the words " personal estate " and substituted the word " property," and made provision by sections 19 and 20 for effectuating the intention of the Devolution of Estates Act {h). Appointment of ddministrator ad litem: — Consoli- (ktod Rule .311 provides:-" Where no probate of the will of a deceased person or letters of administration to his estate, have been granted by a Surrogate Court, and representation of such estate is requii'ed in any action or proceeding in the High Court, the Court may appoint some person administrator or administrator ad litem (according as the case may require) to the estate ; and the person so appointed shall give the security required from, and have the rights, authority' and responsibility of, an administrator or administrator pendente lite (as the case may be) appointed by the Surrogate Court, but the Court may dispense with such security." In Re Williams and McKinnon (i), an application was made under this rule for the appointment of an administrator ad litem, the action being for the cancellation of an agreement for purchase. It appeared that McKinnon died intestate in ISS", his realty being his interest in said agreement and his personalty amounting to from fifty to one hundred doHars. It also appeared that no administi'ation had been applied for and that the widow did not intend to apply. Boyd, C- said :" Con. Rule 311, under which this applica- tion is made was originally a part of the statute found in 48 \'. (c. 18, s. 11) a year prior to the introduction of the Devolution of Estates Act, 49 V. c. 22 (R. S. O. icature and of the '8 of Tk(' Surrol>e 1. " And also that the said ordinaries i.; d jiulffeH respect' velj' .shall and may, and are enal)lt'd tu pmcei"! and call such administrators to account for and toucliiii,' the ijoods of any jierson dying intejitate, and njioii licuiiiu- and clue consideration theret)f to order and make just aii'l •'([ual riistribution of what remaineth clear (aftfr all (libts, funerals and just e.\i)enses of every sort first alluwi'il and deducted) amongst the wife and children, (ircliiMrcib' chilrireti if any such be or otherwise to tiie luxt t-i kindred to the deafl person in equal degree or legally reiin ■ senting their stocks juv sun cuique jure, according to tip- laws in such cases and the rules and limitations hereafter set down, and the same distributions to decree and settle, and to compel such administrators to observe au'l jiay the same by the due course of His ^Majesty's eccli • siastical laws. 3. Provided always and be it enacted by the autlmrity aforesaid that all ordinaries and every other person wli" by this Act is enabled to make distribution of the suri)lusage of the estate of any person dj-ing intestut.' .shall distribute the whole surplu.sage of such estate or estates in manner and form following, that is to say, one- third part of the said surjilusage to the wife uf the intestate, and all the residue by equal i)ortions to and among.st the children of such persons dying intestate and Mii {i) 14 P. R. 3;'.8 (1891) in Chambers. The Chancellor cites Rr Cliambers, IL' P. K. (i-4!l : i)ey v. Dey, 2 (ir. 14i) ; Davis v. Chanter, 2 Phill. 54.") ; Dean of Kly V. (Jayford. 16 Be'av. oGl ; and distinguishes Aylward v. Lewi.s (ISlil), 2 C'ii. 81. «■•**, '•Ml Cap. 1""<] DISTRIBUTION OF PERSONAL PROPERTY. 295 .Micli luTsons US legally represent wiich eliildreu in ease anv "f tlie said cliildren W then dead, otlier than such child 111- cliildren (not being heir-at-law) wiio shall iiave any estat-?- by the settlement of the intestate, or shall be advanced by the intestate in his lifetime by portion or iiortions efiual to the share which sliall by s\ich distribu- tion be ftllotted to the other children to wiioni such (listvilMition is to be made. And in case any child otiier than the heir-at-law who shall have any estate by settlement from the said intestate, (II- --liall be advance-d by the said intestate in his lifetime bv portion not e(pial to the share which will be due to the other cliildren by such distribution as aforesaid, then so much of the surplusage of the estate of such intestate to l)i' distrihuteil to such child or cliildren as shall have any liud liy settlement from the intestate, or were advanced ill the lifetime of the intestate as shall make the estate of all the said children to be equal as near as can be estimated. Hut the heir-at-law notwithstanding any land that he shall have by descent or otherwise from i\w intestate is to have ail equal part in the distribution with thi^ rest of the ihildren witlio;it .any consideration of the value of the laiid which he hath by descent or otherwise from the intestate. And in case there be no children nor any le;,'al rejiresentatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, the residue of the said estate to be distributed efpially to every of the next of kindred of the intestate who are in equal degree and those who legally represent them. 4. Provided that there be no representatives admitted iuiiiiiig collaterals after brothers" and sisters' children, and in case there be no wife then all of the said estate to be distributed equally to and amongst the children, and in case the'-'} be no child then to the next of kindred in eiiual degree of, or unto the intestate and their legal iipicseiitatives as aforesaid and in no other manner whatsoever. 0. Provided also to the end that a due regard be h.ad to creditors that no such distribnticm of the goods of any person dying intestate be m.ade till after one year be fully expired after the intestate's death, and that such and every one to whom anj' distribution and share be allotted shall give bond with sufficient sureties in the said courts that if any debt or debts truly owing by the intestate shall be afterwards sued for and recovered or otherwise duly made to appear that then and in every such case he or she shall resjiectively refund and pay back to the administrator his or her ratable part of the Proviso respecting advance- ment by portion, etc. Ilcir-at-law although he take land to have an equal part. If no children then moiety to wife, and residue to next of kin. Represen- tation amongst collaterals. ]f no child- ren then to next of kin. Xo distri- bution till after one year. If debts afterwards appear then all to refund proportion- ately. wr I' 296 /?iS:^^ PROPERTY STATUTES, [R. S. 0. Provis ■> for adminis- tration. 22 4:23 Chas. II. c. 10. Husbands not coni- pellabltf to make dis- tribution of the personal estate of their wives. debt or debts, and of the costs of suit and ehnrjfps of tli(> administrator by reason of such debt out of the part aiiii share so as aforesaid allcjtted to him or her, tiiertiby to enable tlie said administrator to pay and satisfy tlm said debt or debts so discovered after tlie distribution made (w aforesaid . (J. Provided always .... tliat in all ivists where the ordinary hath used heretofore to grant aihiiiii- istration cum teslamcnlo annexo he shall continue so to do .and the will of the deceased in such testament expressed siiall be performed and observed in sucii manner as it- should have been if this Act had never been made. 20 Cah. II. Cap. 3. 24. And for the explaining one Act of tins jtresent Parliament entitled, Aii Act for tlie better settlinj; of the intestates estates, be it declared by the autJKjrity afore- said that neither the said Act nor anything' therein contained shall be construed to extend to the estates of femes cocerts that shall die intestate, but that their husbands may demand and have admmistrati'm of their rights, credits and other personal estates and reuover and enjoy the same as they might have done before the making of the said Act. 1 Jac. II. c. 17 (An Act for Reviving and Continuance of several Acts of Parliament therein mentioned) continiK's 22 & 28 Car. II. c. 10 and 29 Car. II. c. 3 s. 24 (25.) It contains the following sections : — Administra- tors not compelled to accoimt (except by an inven- tory) but at the inst- ance of |jers(ms interested. Brother and sister of intestate to share equally with the mother G. Provided always .... that no administrator shall from the four and twentieth day of .July next Ix' cited to any of the Courts in the last Act mentioned to render an account of the iiersonal estate of his intestate (otherwise than by an inventory or inventories thereof) unless it be at the instance and prosecution of some person or persons in behalf of a minor or having a demand out of such personal estate as a creditor or next of kin, nor tw compell.able to accemnt before .any of the ordinaries or judges by the said last Act empov 'red and appointed to take the same otherwise than as is aforesaid anytliing in tlw said last Acts contained to the contrary notwithstanding. 7. Provided also .... that if after the death of a father any of his children shall die intestate without wife or children in the lifetime of the mother every brother and sister and the representatives of them sluill have an equal share with her anything in the last men- tioned Acts to the contrary notwithstanding. •i*^ Istratur M'Xt !«' Ined to ki'stat.^ nor be lu-ies or lilted to gin the indiiig' Heath of [without ■r evci'V Im slu«n kt int'ii- Cap. it break into that n;/ fho Clril Ldv: — " I now take it to lie fully settled that this Act is to ))e construed \)y the I'ule of the civil law : and the Stututo of 1 ,lae. II., I think ought to be construed in the same manner; which is an Act of continuance of the Statute of Car. II., with tl\ree additional clauses, and is to be con- sidered as if the Statute of Car. II. had been re-enacted and repeated with these clau.ses " (o). Coiupiitatlon of (Jcc/rcei^ to he made />// the <'iril hur:— The "rule of the cdixm law has been excluded in (nn- courts, who compute by the cirll law " (^)) ; and not hy the common law, either (//). Lecpil repreaenUdivei* : — In 22 t\c 28 Car. II. this pluMse .sionities descendants not next of kin (/•). OJiji'd of IJac. II., (\ 17 : — "To be sure the princii)al and primary intention of this statute of Jac. IT. was to preserve the estate of the father to his own children in a reasonaMe degree, and not to let the mother run away with too iimcli to her children by the second husband " (n\). Property of foreigners : — The personalty of foreigners situate in England passes according to the Statutes of (») Thomas v. Ketteriche, 1 Ves. (Sen.) 334 (1740). (") Hardwicke, L.C., in Wallis v. Hodson, 2 Atk. 117 (1740). {p) Thomas v. Ketteriche, 1 Ves. (Sen.) 334 (1749). (7) Mentney v. Petty, Pre. Ch. 5'.>3. ()•) Price V. Strange, G Madd. Ifil (1820). As to next of kin, s'V Withy V. Mangles, 10 C. & F. 215, 8 Jur. Ci» (1844). (s) Wallis V. Hodson, 2 Atk. 117 (1710). ,.f*»» CiM'. I'"*' J' A IITIA L lyrKSTA iV. •200 Distriiiutioii ; thus loiiHi'liolds in Kiinliuid Itoioii^^^nu' to :i / hls'i'i- htithni ln'in<4' a statute not for Enelishmen oidy, l)ut for all ]iei-sons, linelish or not, dyinj;' intestate ami dondciled iji Kiinhiud, and applyin<;' universally to persons of all CMiintiies, races and relie-ions whatsoe\ei', the proper law t'oi' (leterniinine; the " kindred " under that statute is the international law ach^pted l)y the conuty of states. Acoonlinelv tv child not le>) T loyd V. Tench, 2 Ves. Sen 215 (1750) ; Durant v. Prei^two(Ki, 1 Atk. 454 (173c). [c) Stanley v. 8^.Iiley, 1 Atk. 4.55 (1738) ; Davies v. Dewes, 3 P. Wins. "iH (1730) ; Walsh -. ^Valsh, Pre. Cli. 54. (rf) ocanley v. Stanley, supra, (c) Woodworth v. Wiukworth, Pre. Ch. 527. (/) Lloyd V. Tench, 2 "Ves. Sen. 215 (1750). (y) Thomas v. Ketteriche, 1 Ves. Sen. 333 (1749). U^^M Cap. 108.] GRANDPARENTS AND GRANDCHILDREN. 301 Grandparents and grandchildren : — Grandparents bein 302 JlfJAL I'ROI'llUTV STATUTKS. [K.S.O. tation of her husbaiid'fs will. " The plaintiff cannot now elect to take her interest in her husband's unilisposid-of real estate under The Devolution of Estates Act, R. S. 0. c. 108, s. 4, as her election must be by deed attested, us provided by section 4, sub-section 2 ; and as such election was not made it is now too late. As urged by Mr. W. R, Meredith, the widow has, by bringing the action, made her election." The conclusion to be drawn from the above decision, is that the widow's election to take her dower may be evidenced in any way ; but that her election to take Iiei- share under tlie present section must be evidenced strictly as provided in said section. Election by will: — B.I. died the 15th day of June 1889, his widow died the following 31st day of August, having made a will, dated 28th day of August, 1889, with this clause,"! elect to take a distributive shave of my deceased husband's real estate in lieu of dower therein." Robertson, J. : — " There is no doubt that for some purposes the date of the will can be looked to for the purpose of ascertaining, for instance, the intention of the testatrix; and that being the case, it is clear that three da^'s before the death of the testatrix, she intended to elect to take a distributive share in the real estate of her deceased hisband, and as the will was duly executed as a will, it f )!lows that it must be construed as an instrument within the said fourth section, duly executed according to the requirements of that section " {I). Election before the Devolution of Estates Acf:—'\- widow might be reijuired to elect between her dower and a distributive share even before The Devolution of Estates Act (m) . (/) lie Ingohlsby, 1!) O. R. 283 (1890). (m) K.g. See Re QiiimW, 5 O. R. 73S (1884), Boyd, C, following A' R:iukinar".s Trusts, L. R. tj Eq. (iOl, McGregor v. McGregor, 20 (Jr. 451,aii.l followed in Aiusden v. Kyle, » O. R. 431). M'T! Cap. lOS.] AMOUNT OF WIDOW'S SHARE. 303 the Estates Iwini; '>'■ ii/HOiwii q/^' ^vidoiu's share under section 4 • — Tlie Statute 22 & 23 Car. II. c. 10, provides (s. 3) for tlie following distribution : — One third part to the wife of the intestate, and the residue to the children (or their rcspresentatives). And in case tliere be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate. Accordingly, where there are children, and the widow elects to take her share under this section, she takes a third in the realty as in the personalty ; and takes it not for life but absolutely out and out (n). Where an intestate leaves a widow and no next of kin. one-half of the personal estate goes to the Crown, the widow taking only the other half (o). A widow, as such, cannot take under a limitation (in a will, etc.) to the next of kin of her husband, according to the Statute of Distributions ( j)). (3) Any husband who, if sections 3 to 9 of this Act had not Saving ;is passt'd, would be entitled to an interest as tenant by the curtesy 1-'^ husband s in :uiy real estate of his wife, may by deed or in.strument in j,[.,,in.i.ty ,|f writing,' executed within six months after his wife's death, and wife, attested by at least one witness, elect to take such interest in tlie re;il imd personal property of his deceased wife as he would have t:il;eii if the said .sections of this Act had not passed, in which case the husband's interest therein shall be ascertained in all respects as if till' said sections had not passed, and he shall be entitled to no fiuthiT interest under the said sections of this Act. The extent to which an estate by the curtesy may still exist has been discussed in the notes to R. S. O. 1887, c. 10-i, s. 5 siipni. Where the husband does not elect, within the time and in the mode prescribed by the present section, to take his estate by the curtesy, his rights will be determined by •section 5 infra. («) Et Reddan, 12 O. R. 781 (188(1). (■■) Cave V. Roberts, 8 Sim. 214 (1836) ; sec Coombs v. Her Majesty's lV.ctoi- Hi Jur. 820 (1852). (p) Cholmondeley v. Ashburton, C Beav. 86 (1843). \ h. 804 HEAL PROPERTY STATUTES. [R. 8. 0. " Would be entitled to an interest " : — These words sufTgest the question whether the husband, having elected to take the estate by the curtesy and it having been found that he was not in reality entitled to such an estate, could then claim his interest under section 5 infra. Distrihutio7i after husband's death : — Where the hus- band has until his death enjoyed a tenancy by the curtesy : the property will then devolve according to the Act, not upon the heir-at-law, but upon the next of kin ( V . e. 22, 8. 4 (5). •"• **• ^- 1^77. c. J«. g. ei . ve„, 80 a.s to limit the liabi^tv. '^' *'^'^" ""« ^.ay "'"""»t as the Judpe thini ^ ^ "^ '""^ '"''^^y to such : ^''•"-Itm^r^:;2f-^^^teCourt.o„ ^ - ^-.-satisfied thatXXiirofT'?^^^^^^'-^^^^ «'-Se°^ ^■•oken, may order the RegiZr o 7 n'^' ^°"^ '^^« been Courtf as t„ same to some ,,erson to be ZJ I ■ ^°"''' ^o assi^^n the '^'I'fi^'i^'ent '"■-;". hi.s executors ^ adminSt'" ''! "^^'''^' -'" -h ^' '"-'«• ™''^^;'^ to sue on the said ^1!^" "'''*" ''""-^^P^^" ^^^ -'.e h,.l beea origmally gi " „ "o ) °^" "'■^'"^' '^^ '^ ^^^ •^-J,'eoftheCourt.andshfl bee^ti^l H^^ of to the "^ fr,ustee for all persons inJr« . , '" '■•^°^'"' t'^^reon --•'■able i„ respect of any l^J f^ V '''' ^"" '^^ount ^r;"'' '• and all bonds heretofore t,v ^' '""^'''"» "^ ^^^e '^"•■rogate Court, and now in w/ "^ ^^"^^"^ ^^ ^"V --fe-ned under the authority of LT.'" "'^^ "^""^ ^^ C;-t, and the assignee shaH be- e ,fed f "' ' '""°^'^*« ; '"'von ,n his oM'n name and ^T ^^ "'"^ ^"'^ recover Hccurif), / sections. ' ';'.'■ -«"to™. 0,0 Crown I 'i '■'" ""™''-<' '» secure '"o«t,„n, 53 \- e. g ^ g""'^"'- '» loured by ti.e follow- 5. An executor oi nr>- • • S^^^^E ESI— - -"- ■ '" "ustratKju to him ni-iI-„ ^.f '''"*''"^ J"'"'3ate or 'n^entorv, ^^'>>"«trar a full, trae'Zl '""'^ '^''^ ^"*'' 'h« «"'-roga e ?"^' ^""^^ H..U..S.-.20 '"'^ ^"-'^^t statement under oTth o^r"' aJW ^. 306 EEAL PROPERTY STATUTES. [li. S. 0. Distribu- tion of pro- perty of marriefl W(jnian dying intes- tate. showing (a) a full itemized inventory of all the iUKpirty of the deceased person and the market value tluTt-nf. (6) The several persons to whom the same will p.i.-s uiuii-r the will or in*-''stacy and the degree of relationship, if anv, m which tiiey stand to the deceased ; and the execu- tor or administrator shall before the issue of letti r< probate or letters of administration deliver to the Surro- gate Registrar a lH)nd in a penal sum equal to ten (ler centum of the sworn value of the projierty of the (lecfusiti person liable to succession duty, executed by himself and two sureties, to be approved by the Registrar, conditioned for the due payment to Her Majesty of any duty to which the property coming to the hands of such executor or administrator of the deceased may be found liable. (2) This section does not ajiply to estates in resinct uf which no succession duty is payable. 5. The real and personal proi>erty of a married woman in respect of which she has died intestate, shall be distributed m follows : one-third to her husband if she leave issue, and nie-lialf if she leave none ; and subject thereto, shall go and devolve as if her husband had pre-deceased iier. 4'J V. c. 22, s. 5. This section renders more explicit what is conttiined (as to personal pi'operty) in a section of " The Married Woiiuui!: Property Act," R. S. O. 1887, c. 132. Separate personal proi)erty u{ wife dying intestate, how to bo distributed. 23. The separate personal proi>erty of a iiiarricil woman dying intestate shall be distributed in the .-•.'inie proportions between her husband and her children as the personal property of a husband dying intestate is tu Ix' distributed between his wife and children ; and if there be no child or children living at the death of the wife so dying intestate, then such property shall pass and In; distributed as if this Act had not passed. 4" V. c. W, s. 20. Distribution under section 23 of cJiapter i-L'.— In Asldll V. Roach (r), a wife died leaving a husband and two children surviving her. Boyd, C, said : — " These two infants and their father ai'e the persons who would be entitled to one-third each under the Statute of Distribu- tions pertaining to the personal estate of married women (r) 5 O. R. 703 (1884). „r»^ 4 ^J^ 'i*'* f Cap. 108.] .^:^^;^^^^~;^^^o^r^rK ... ,y,,,. who .lie intestate: R. S O p lo- « Oilbart, 2 DeG. M. & q. 715 and S P '« ^^ ^'^ ' '^^''^"^ ^- section 23, aceo.lin. to j ^ c t","?""^'' "'" "-""vo cluce a -.legislative ridd, " S* l^:/?"™"' ">■ P''"- fron, tl,e ConsolidaW Statutes of IT '^ ""^'-vival simplest solution of the riddle i, J '''J'"' <^'™*la " the l>y.*cci„„ .5. above; and to atw .?"'''" "^ "^"P^™"''-' "» .fournal does, to the revt^tf tt TT ' '^-P^-y. - The old state of the W on thK'"''"- "s very si„,ple. The hulan 1 ■".'"'' "^ "'« '^''I'jocfc the whole of L deceased :-fe"'r'7i™^ »«'«> '» .■eeog.,i.ed by 20 Car. II " 3 s"^ 9!°" f '* ^Lix was O". II e. 10. The present 'sectL - '■"P'*'»'"g -'2 & 2.3 P'oJnee a striet equality Z tC Z " /""""^''■-"y ^^''ks to «1 "...I personal nropfrt' " '-"f r''"' <»»Wb„tin, the fe.nale. ^^'^''^^ "^ ^testates, whether male <,r "» '1-position „,«de of the „7f5 ""''^ "''""'^ ""^■•e was l'»sl>and suceeedeil as nert of t '^''T^ Property the ngl,t („). '"=■"' "f k,n and not by nmrita) -t r;t ;Er;^:;t:^--- -■ «J:'Z '-'!'"« -^'"^"^ ™S ::'r^ --"V, .«;:g;;;;. r*istribii- Y'^ther surviving ^hJlTC^^T] 7 ''"'"''''' '-"'-•'>•. —^ - •""'-the i„te.stacy than S. ^oZT *° ^"y greater .share "/ !--o.. ™fviv,ng; nor shall a ^ranrfir ' """^ ^'""'^'er or .lister r?"^' ""''•^- ^^ i"te.ate shar^ift^^L: ^T' ""^'•- °^ ^ Pe^!!: SlhS mother, brother or sister. 49 V c. 22, s fi' "" '""'"''"^ ^***''«>'. ''■'"*'• ^^ ^^ff^J^'^f father, mother, etal-~Th.f personalty was that the fathpr T"7n ^'''''''^'' ^'"^^^ ^^^ to '^)-.H.s.o.. J'^^"'^^^^^-^^^^^e father... ^'' V'''""'e 29, p. ,6;.'' "' - '• '^' ''^^ *^^* of ^vhich is ^ive„ ab<,ve. on .. i-^ L„,„b V. Cleveland, iotfe^! V^LSJ- :. 1^^^^^^^^ r :] 308 REAL PROPERTY STATUTES. [R. S. 0. dead the mother, brothers and sisters took in equal shares (f). The former rule as to realty in Ontario is contained in sections 31 and 85 infra. Applica- 1. The real and personal property of a deceased person com- tion of i)rop- prised in any residuary devise or beqnest shall (except so far as nient f **■ ''"'^^''^''y intention shall ai>pear from his will or any cddieil debts. thereto) be a])plicable ratably, according to their ri'.s|H_'ctive values to the payment of his debts. 49 V. o. 22, s. 7. The former rule in Ontario, and that now in force in England, is the rule laid down in Re Bate, Bate v. Bate{w), where it was held that the whole of the personal estate not specifically bo(]ueathed, not excepting pecuniary le^^uclL's, must be applied in payment of debts before the real estate can be resorted to. " Specific legacies and real estate devised, whether in terms specific or residuary, are liable to conti-ibute i)io rata " (x). - , The effect of the present section is to level the distinc- tion between real and personal property left in a residuary devise or becjuest. Mort(](i(/ed land devised : — " According to R. S. 0. 1887, c. 109, s. 37, the land mortgaged is primaril}^ liable to pay its own Ijurdens ; and according to section 38, if a testator wishes to vary this rule, it must be by a direction applying to his mortgage debts in such terms as distinctly and unmistakably to refer to or describe them (y). Such a direction is not to be gathered from the fact that he directs his debts to be paid out of a mixed fund (z). The Devolu- tion of Estates Act is to be read in conjunction with the sections above cited from the R. S. O. 1887, c. 109. Ami S. (. ■ 17, mm. (v) Sre Williams on Personal Property, lOtU Ed. 404 ; also I Jac. II. c. 17, (((') 43 Cliy. D. GOO (IS'JO). Sm .Jarman on Wills, 5th El. 1430. {.c) Jarman, 1431. (ii) Nelson V. Page, L. R. 7 Eq. 2.-) (18G8). (,;) Elliott V. Dearsly, IG Ch. D. 322 (1S80) ; Re Smith, 33 Ch. D. I'.'S (1886) ; Re Newmarch, Newmarch v. Htorr, i) Ch. D. 12 (1878). 11^^ I p^ VUl'J y aud 5UcU a )evolu- lith the Aivl li.c.iT D. 1-' Cap.lOS.] SALES OF INFANT'S ESTATES. 309 in that view, I «.lo not think that tlie words used in the 4th iin '^ 1\ ■Ms (I.- 'U ' ; ( A :l 6^:. 310 HEAL PltOl'KliTV STATCTKS. f H. S. 0, Hince the Devolution Act, it is aaii Cap. 108.] DUTY OF OFFICIAL aUARDlAN. 311 present a .scheme showing how it i.s propo-sed to deal with ami divide the property in order that the Judge may see to the j)rotection of their interests ; this is also tlie »hity devolving upon the official guardian under section 8 of the Act. When the sale of land in which infants are interested is proposed by the executors, it is competent for that officer to see that the minors' shares are or will be properly invested and protected. In case of doubt, the matter can always be referred to the Court, and thereby proper iK'iisures taken to secure the proceeds by payment into Coiu't, or otherwise. M}^ brother Ferguson concurs in the ueneval results herein directed, and refers me to Mitchell \. jl'ivliic, I'i Or. 445, 451, as to the care to be exercised over infants' money. This is a proper case to allow all costs out of the estate." " 117/ icli hilt for the 2'>rece(li7if/ sections of this Act xvould not devolve" : — In Ke Booth's Trusts (/), the will devised lands to the executors on trust to sell the same, and the ([uestion arose whether the approval of the official guardian was necessaiy. Ferguson, J. — " Then the eighth section of tile Act says that where infantn are concerned in real estate which, but for the preceding sections of the Act, would not " devolve " upon executors or administrators, no sale or conveyance shall be valid under the Act without the written consent or approval of the official guardian of infants appointed under the Judicature Act, or in the absence of such consent or approval, without an order of the High Court. The difficulty I have is in respect to the words in this section, ' which but for the preceding sec- tions of this Act would not devolve on executors or admin- istrators.' By these words it seems to have been assumed tliat there are cases or instances in which, apart from the preceding sections referred to, the estate might or would ' devolve on ' executors or administrators, which, according (,'1 Ki O. R. 42!» (18S8). k^ t I / fs^ 312 JIEAL PROPERTY STATUTES. [K.S.O. to the strict meaning of the word 'devolve,' ctnild not, I think, leaving some peculiar estates out of consideration, be the case unless the executor or administrator hai)peniMl to be heir-at-law (and even in such case he would not take as executor or administrator), because the executor or administrator as such before the Act took, and now, a])art from the provisions of the Act, takes no estate or InterL'.st in the lands of the testator or intestate. As to the lanils, nothing fell upon him by succession. As to those, he could not, in his capacity of executor or administrator, be a successor or take by succession. Hence the estate cnuld not devolve upon him according to the strict meaniiii; of the word ' devolve.' By these considerations I am led to the conviction tliat the Legislature did not use or intend to use this word ' devolve ' in the second line of the eighth section according to its strict and accepted meaning-, but according to a meaning that is found in some of the authorities, namely, ' to pass to another,' and that what is really meant by this part of the eighth .section is, that where infants are concerned in real estate which but lor the preceding sections referred to would not come to the executor or administrator by a devise, gift or otherwise, no sale or conveyance should be valid under the Act without the written consent, etc., and that this eighth section has no application to a case such as the present one, in which the estate, but for the provisions of the Act, would be vested in the executors by the will, which also gives theui the power to sell the same ; and for these reasons I am of opinion that the consent in writing of the guardian nuu- tioned in the eighth section is not, in the present case. necessary to validate a sale and conveyance of the lands by the executors." Power of 9. Subject as hereinbefore provided, the Icg.al jiersoiial repre- personal sentatives from time to time of a deceased person shall \\a'^^ tiveoverreal PO^^'^^" ^^ dispose of and otherwise deal with all real pro|)«Tt.v property. vested in them by virtue of the preceding sections of tliis Act, Cai'. 1II.H.] i'(nyj-:i:s of Jii-jj'iiEst:yTATiyEs. 813 with all tliP like inciiU'iit*, Imt siiliject tu all the liko riglits, (•([iiitit's ftiid ohligiitioMs, lis if tht' m:hiio wore iHjrtionivl proiii.-rty vested in tluin. 41» V. c. •_'!.', s. It. Pinrcm of rcprrsenfaflve.-i ; Conrr)j<(ure of wife^s IkikI.-^ hjl l(nsh(t}i(l : — 111 Re Wilson und Toronto Ivrandesccnt h'liiirir Light Co. (;/), laiul hud been conveyed in 1.S74 to a luisliiind and wife, who were inarrieil in 1804. It was held tlmt they took like ,sti"an<;ers, not by entireties, but as tenants in common ; and also that the husband could, by virtue of the Devolution of Estates Act, as adniini'trator of the wife, and in his own riu'ht, make a valid conveyance of tlie wliole of the land, althoiujk there were no >) 24 0. R. 30S) (18!)3). .1 , m 3U IlKAU PROPKltTY ,'STArrTES. [R. S. 0, statute, seems to me to indicate the purposes for which the personal representative may sell the lands. " It was not shown whether or not there are in the present case debts of the testatrix. But it seems clear that the purpose of this exchange could not laave been tlie pay- ment of debts or of makiiifj a distribution amongst the persons beneliciall}' entitled, and, besides, it was proved before me in a general way that " the heirs " objected to the exchange being carried into effect, and it did not appear that the official guardian had been consulted. " I am not of the opinion that the personal representa- tive can properly make ihe lands of the testator or intestate the subject of specii];ition or exchange by him in the san\e manner as if the lands were his own ; and, if there were no reasons other than those above alluded to, I should be of the opinion that this action for specific per- forniauce could not succeed. " I do not see that in taking this view I am iroini; contrary to anything laid down in Martin v. MiUjc, IS A. R. 381, or Scott v. Svpidc, 23 0. 11. 393, or in Re ]\"dsna, 20 O. R. 397. In the last-mentioned of these cases, my brother Falconbridge says, at page 403: 'I do not say how it might be if the administrator, having no other interest, were arbitrarily endeavouring to sell against the wishes of the heirs, and without reason or necessity for selling, such as the existence of debts.'" Can executor of (teccifscd h'.'^sor reneiv Icafie offrcchohl! — " By section 9 of ' The Devolution of Estates Act,' power • given to the legal personal representative to dispose of und otherwise deal with all real property vested in him nnder the provisions of the Act with all the like incidents, but subject to all the like rights, eijuities and obligation.^ as if the same were personal property vested in him. " If the property were leasehold instead of freeiiold, a legal per.sonal representative might always have disposed "f ''^% Or. los.] HEIRS AND ASSIGNS. 315 it absolutel}', or by way of underlease, and liave made a 'fdod title even against a specific legatee, unless the dispo- sition was fraudulent : see Williams on Executors, 7th ed., pp. 989 et seq.: hy section 9 of the Act, he has now the like power to renew a lease of real property. '■ If the renewal of the lease would l)e in violation of the ri;,^lits of anyone beneficially entitled to the property. doubtless the Court would prevent any such breach of trust, ami would set aside the lease if taken with notice of the IjrL'ach uf trust, which with the trustees' liability to account? is tiie protection that the beneficiaries have. " 111 my opinion, the question whether the executor has power to grant the renewal of the lease must be answered ih the affirmative " {hk). 10. In tlio case of a person dying after tlie Ist day of July, Persoiml lf»>(!, his iKT.sonal representative for the time being shall, in the rt'pre.s^iita- ,, , ^ , ^, . ,, . . ^, ^ tivestooe iiitcrpret.'Uioiiot any Statute of tins 1 rovince, or in tiie construe- deemed in tiuii of any in.'Struirient to wliicli the deceased was a party, or in law iieirs which he was interested, be deemed in law his heirs and assigns, and assigns. iiiilfSR a contrary intention appears. HO V. c. 7, s. 35. " Heirs and assigns " ; — These words occur either alone or in conjunction with other words in a number of places ill the Statutes: — In chapter 105, f^upra, in clauses 1, 3, 5, 0. 7, 8 and 9, in column 2, schedule B ; in chapter lOG, ^ui'i'd, in schedule A, and in clauses 1 and 10 in schedule B; ill chapter 107 in schedule A, and in most of the eliiuses of schedule B. As for instrunionts, the words heirs ami as.«igns occur in most of the ordinary printed forms of deeds and mort- \\e may here insert the two amending Acts referred to in the iutruductory note to the present chapter : — if M] Meredith, .T., in /.'-■ C. P. U. Co. v. Natumal Club, 24 O. K. 205 (Mt3). 316 REAL PROPERTY STATUTES. [r>A Vic. $ ''r> 54 Vic. Cap. 18. An Act reapecting the Sivlc of Iteal Estate by Executors and A(liiiiiii.strat(jr.s. H.'r Ml Assembly Keal es- tate' not flis- posi'd of witliin a year to vest m heirs un- less caution registered. Rev. Htat. c. nC). Eorin of caution. Rev. Stat. c. 114. Caution only toatfect lands specified. With- drawal of caution . [ As.sented to 4th May, 1S;)1 . iijesty, by and with the advice and consent of the Legislative of the Province t)f Oiitario, enacts as follows : — 1. (1) Real estate not disposed of or conveyed by execu- tors or administrators within twelve months after tlu- death of tiie testator or intestate shall, at tlie expiratiiiiiut tlie said period, l)e deemed thenceforward to be vi'stni in the devisees or heirs beneficially entitled thereto, a.s such devisees or heirs, (en- their assigns, as the case may be), without any conveyance by the executors or adiiiinis- trators, unless such executors or aduiinistrators, if aiiv, have cau.sed to be registered, in tlie registry ottice or laiiil titles office where the land is, under Tin- f.iiad Tillf-i Act. of the territory in wliich such real estate is situate, aoautiun under tht.'ir hands that it is or may be necessary for tiii'in to .sell the said real estate, or part thereof, under tiicir powers and in fulfilment of their duties in that behalf ; mA ni case of such caution being so registered tliis sectimi sluU not apply to the real estate referred to therein for twelve months from the time of such registration, or fr;ni the time of the registration of the last of such cai-tions if mure than one are I'egistered. (2) The caution may be in the form or to the effect folk)wing : — \Ve (A. B. antl CD.,) executors of ('ir itihain- IsirK'ui's with the will annc.ad <;/', ur admiiiislralorn "/) , who died on or about the day (jf do hi-reby certify that it may l)e necessary for us imi! 318 RKAL I'lWPKRTY STATUTES. [54 Vic. 'I ' (2) The approval of the official guardian to be exiiressefl in writing under his hand shall be sutficient tr receive and accept his share or supposed share of the iJUi- chase money, such acceptance shall bo deemed a confirma- tion of the sale as respects such jjerson. 6. Persons bnan jid'' purchasing real estate from tli'' executors or administrators of a deceased owner in manmi authorized by The Devolution of Estates Act or this Act shall be entitled to hold the same freed and discharged from any debts or liabilities of the deceased owner nut speciHcally charged thereon otherwise than by his will, and from all claims of his devisees and heirs-at-law as kucIi, and the purchasers shall not be bound to see to the aiipli- cation of the purchase money. 6. Persons bona fide purchasing real estate from a devisee whose devise has been assented to by the execu- tors or administrators by deed, or by writing under their hand, or bnnti lidc purchasing the real estate from any lieir at-law or de\ isee to whom the same has been cMiveyed by the executors or administrators shall bo entitled to held the same freed and discharged from any unsatisfied debts m.- .-*\ •I mi til'- maiui'V ,liis Alt. cliarg'-'l ;w\- II"' vill, mA as ^>ii-'l'» rap. IS.] APPOINTMENT OF DEPUTY dUARDIANS. 819 and liabilities of the deceased owner not specifically charged tliereon otherwise than by his will ; b\it nothing herein contained shall lessen or alter the rights of credit- ors as against the executors or administrators personally, or tlie rights of creditors as against any devisee, heir-at- law or ne.vt of kin in whom real estate of a decea.sed debtor has been vested by the executors or administrators or permitted to become vested, to the prejudice of .such creditors. 7. (1) The official guardian shall iiave power with the approval of the Lieuttmant-( Governor in Council, or of the Judges of the High Court of Justice, to frame rules regu- lating tliB practice and procedure to be followed in all proceedings under The Devolution of Kstates Act or this Act, in which the privity or ccmsent of such official guar- dian shall be required ; and also to frame a tariff of the fi es to be allowed and paid to solicitors for services rendered in such proceedings. Such rules and tariffs when approved as aforesaid shall be published in the (intario (f'azeltc, and .shall thereupon have the force of law; and tlie same shall be laid liefore the Legislative Assembly at the next session after promulgatitjn thereof. (2) In case the Lieutenant-* iovernor sees cxicasion in consequence of the illness or absence of the official guar- dian or tor any other cause, he may appoint a perst)n to act as the deputy _^j)vi tern, of the official guardian for the purposes of The Devolutiim of Estate Act and this .\ct ; and adei)uty appointed by the Lieutenant-Governor shall have all tlie powers of the official guardian as respects the said purposes. (3) Affidavits may be used in proceedings taken in pursuance of the .said Act or of this Act ; and such affidavits may be sworn before any commissioner for taking affidavits or before a notary public. Proviso. Rules of jtrocedure under Kev. Stat. c. 108. Appoint- ment of deputy offi- cial guar- dian /)/•& <('//». Affidavits. 56 Vic. Cap. 20. An Act resi)ecting the time for the Vesting of Estates in Heirs and Devisees, [Assented to 27th May, 1893.] Her Majesty by and with the advice and consent of tfie Legislative Assembly of the Province of Ontario, enacts as follows : — (^. 320 REAL PIlOPKnTY UTATPTES. [•■><> Vic. H Registra- tion of caution after twdvo inontlis from death of testator. 54 V. c. 18. Proviso. Kffect of refristration. Peri (111 for ve.sting' of estates in 1. Where e.xeciitors or administrator.s iiave, thronrfi oversight or otherwise, omitted to register a ciuitiim within twelve month.s after the death of the testator or intestate, as provided by the first section of the Act intituled, An Act rrfpectin;/ the sale of Real /ittak In/ t'lcufors mid (ulinini' order ^ al 7 °l '''] ^^--ber, 189^ .>»«-».«« were brought in h„ • ''''™'"y- 1893, the ""Wlicable to them ""''' "S^""^' this order "' ^H^^"^^"S:s"':^"'---.-e.ct ^' ^' ^^- c- 108. ^«* and Its amendments, , "% section 4 Un/i , . '^l'«ition, devoirs ""pon TTT"''"'' testamentary «voyed by the executor l^thinT^ , ""' ^^'^Po^ed of „r *»"' of the testator, sha I "" the T ™ "■™"'^ «"'''■ "'o "'^-. «....„«, ■ "' "-^ ^-^P-'- of ti.e said HR.P.8 21 ll 'S 322 HEAL PROPERTY SiTATUTES. [U.S.o. period, be deemed thenceforward to be vested in the devisees beneficially entitled thereto as such deviseos or their assigns, as the case may be), without any convi'vaiice by the executors, unless the executors cause a caution to be rej^istered against the lands, setting forth that it is or may be necessary for them to sell the lands under tlioir powers and in fulfilment of their duties in that bohalf. In this case no such caution was registered. "Section 6 of the Act of 1891, provides that nothiii"- contained in the Act shall lessen the rights of creditors as against any devisee in whom real estate of a doCLa-Li] debtor has been vested by the executors, or permittL'ii to become vested to the prejudice of such creditors. "The Act of 181)3, oG V. c. 20 (O.), ])rovides for ro-is- tration of the caution after twelve months from the tes- tator's death ; and section 2 declares that the subse(|Uviit reiiistration shall have the same effect as if reu'istertd within the year, save as regards persons who, in the im- ni- time may have acijuired rights for valuable consideration from or through the devisees. "Section 3 of this last Act declares that the peril mi nf estates becoming vested in devisees without convcyaiiiO' was not to be dela^'ed beyond the twelve months by rL■a^"n of probate not having been taken of the will, and that it is not necessary in order to such vesting that proliate should have been obtained. These are all the uiatorial clauses. " In the result it appears to me that twelve months after the death of the testator, no probate having issued anee (or his assigns). "That is, on the 17th Octolier, 1892, the right of the personal representatives ceased, whether the devisee li:il or had not conveyed or dealt with the land. The only ■((.,#. Hj,_ .,.**^ tUi'-t it hv'-il r.ite |\atevial |iuontb> In the 1 devisee of tl\e Isee V.;ii Ihe only Cap. lOS.] EFFECT OF 54 d: 50 VICT. 323 (luc^tiuu is, couM he assume to mortgaS'ee Re Fen/ufion, 2wr Meredith, J., June 16th, 1891 ; Re Bairdyper Boyd, C, June 19th, 1893 "(/.•). Interpreta- 11. Tlie words and exprc's.sioiiH hereinafter mentioned which tion. in tlieir ordinary signilioation have a more confined or a ditfcri'nt meaning, shall, where tliey occur in the next fifteen sections, numbered from 12 to 20 inclusive, except where the nature of the provision or the context thereof excludes such construction, be interpreted as follows, that is to say : ^' Land." (1) "Land " shall extend to messuages, and all other heredita- ments, whether coriioreal or incorporeal, and to money to I« laid out in the jmrchase of land, and to chattels and other personal property transmissible to heirs, and also to any share of the .same hereditaments and properties, or any of theni, and to any estate of inheritance, or estate for any life or lives, ur other estate transmissible to heirs, and to any jiossibility, right or title of entry or action, and any other interest caiiahlt- of being inherited, and whether the same estates, ixissihilities, rights, titles and interests, or any of them are in ix)s.sesfii(jn, reversion, remainder or contingency ; "Purchaser. " (2) "The purchaser " shall mean the person who last acquired the land othersvise than by descent or than bj' any partition, hy the effect of whicli the land becomes part of or descendible iu the same manner as other land acquired by descent ; "Descent," (3) " Descent" shall mean the title to inherit land by reas-im of consanguinitj', as well where the heir is an ancestor or colla- teral relation, as wli(;re he is a child or other issue. "lK':,CPnd- ants of any ancestor." "Person last entitled to land." (4) " Descendants of any ancestor" shall extend to all persons who must trace their descent through such ancestor. (o) "The person last entit i^'l lo land" shall extend to the last person who had a right trereto, whether he did or did not obtain the possession or the receipt of the rents and profits thereof ; "Assurance." (6) "Assurance" shall mean any deed or instrument (other than a will), by which any land may be conveyed or transferred at law or in equity ; " Rent." (7) " Rent " shall extend to all annuities and periodical sums of money charged \\\^o\^ or payable out of any land ; and "Person through whom an- (8) " Person through whom another person is said to claim shall mean any person by, through or under, or by tiie act of whom the person so claiming, becomes entitled to the estate or (t) 29 C. L. J. at p. 622. i Cftp. li'S.] KQUI TABLE ESTATES. 'V25 iiitl)an(l, assi^fuee, appoint'.'c, devisee or otherwise. II. S. C). 1S77, c. lO.'i, s. 2. DESCENTS BEKOHK IsT Jui.Y, 1834. 12. Tliis Act sliall not extent! to any descent which took place on tlii^ death of any jxTson who died before tiie first day „f .lulv, is:u. K. S. 0. 1S77, c. 10."i, s. 3. Descent-^ lie- fore .lulv I, 1>34, to' 1.0 as lit Com- mon Law. tixed hy & 4 Will. The next seven sec- tions not to operate re- trospective- ly in certain cases. The tir.st day of July, 1.S3-1, was the date 4 Win. IV. c. 1 (U. C), H. 11. The Imperial Act 3 IV. c. 10(5, took ett'ect Lst day of January, 1834. DE.SCE.VTiS SINCE l.ST JULY, 1834. 13. The seven next sections of this Act, numl>ered from 14 to 111) inclusive, shall not have operation retrospectively to a l)t'ri(Kl of time anterior to the sixtli day of March, 1834, so as, by force of any of their provisions, to render any title valid, whicli in regard to any particular estate had, prior to that day, been .idjudfied or has been or may be in any suit which was dejiending on that day, adjudged invalid on account of any dffi'Ct, imperfection, matter or thing which is by such sections altered, supplied or remedied ; but in every such c.ise the law in • regard to any such defect, imperfection, matter or thing, shall, as aiiplied to such title, be deemed and taken to be as if those sections of this Act had n(jt been passed. K. S. O. 1877, c. 10."), s. 4. 6th day of March, 1834, is date of passing of 4 Win. IV. c. 1 (U. C). Equitable estates: — Equitable estates descend according to the same rule as legal estates (/). 14. In every case on and after the first day of July, 1834, descent sliall he traced from the purchaser ; and to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title require, the jK-rsiin last entitled to the land shall for the purposes of this Act be cuii'sidered to have been the purchaser thereof, unless it is proved that he inherited the same, in which case the jjersou from whom he inherit<;d the same shall be considered to have been the purchaser, unless it is proved that he inherited the same Descent shiill always be traced from the purchaser, etc. Imp. Act, 3-4 Wm. IV. c. lOG, s. 2. (I) &e Trash v. Wood, 4 My. & C. 324 (1839), and cases there cited. ^ 326 HEAL PItOPERTY STATUTES. [R.S.O. and, in likf manner, the lust pcrMon from wlidni tin- laiul is proved to have been inlicritt'd sliall in ovcry cast' lu- uoiisiclfrcd to have htau the piucliascr, unless it m proved that he inherited the same. K. H. O. 1877, c. 10"), s. 5. Descent from (he last piurliuser: — " By the law before the statute of inheritance {in), in matters whicli were capable of seisin, it was always traced back to the person last seised ; but in estates incapable of seisin, such as remainders and reversions it was traced back to tin; last purchaser .... This rule of descent is not contint'd to contingent interests ; for vested interests in reinaiiidor and reversion are exactly in the same situation .... "How does the matter stand under the new statute '. The statute of the 3rd or 4th Wm. IV., c. 100, lays down this ; the law was different on the subject as I have ahvuily said, in those cases in which there was a seisin of property, and in those cases in which there was no seisin, antl it was considered veiy desirable to assimilate the law on that subject, and, accordinglj' the new statute has altered the law of inheritance in this respect, and has endeavoured to assimilate the law, both with regard to matters capable nf seisin and the law as applied to matters incapable of seisin. Accordingly it enacts, that if an estate in possession deseeml on the heir of a purchaser, and he does not deal with it in any manner whatsoever, and then dies intestate, it will descend not upon his heir, but upon the heir of the purchaser. That is what the statute has enacted " (n). Son claiming descent from Illegitimate father:— X flaw in tha present section was discovered in a case of this character (o). The flaw Avas afterwards repaired in Enj,'- land by 22 & 23 V. c. 85, ss. 19 & 20. Vendor relying on stcdiitory iwesumption of imrcluise : — A vendor making a title as heir was not bound to pro- (m) 3 & 4 Wm. IV. c. 106 (Imp.). (n) Sir John Romilly, M.R., in Ingilby v. Amcotts, 21 Beav. 585 (185G). (o) Doe d. Blackburn, 1 Mood. & Rob. 547 (1836). w, ,,-*^^ ible of C^,, if.o] LIMIT ATIoy TO (IRANTOR OR HIS HEIR. 327 (luco !irtinnative evidence in his possession that tlie ancestor from wlitjui he truces descent took as a purciiaser hnt may relv on the statutory presuinptinn, until some ))roof t(j tiie cnutmry is adihiced. Jiut lie was bound to disclose any matters within his knowledge tendino- to rebut the pre- sumption that his ancestor took by purchase {p). Vur further cases see Jilake v. /////i^w {q) and cases bflow. l."j, Wlierr liuid i.s ilfvised by a ti'.'itiitijr dying afttT the first lli'ir en- (lav of .lulv, 1S34, to the heir or to the ijctsou wlio shall bo thf titlfd \indcr fii'ii' of suvh testator, snuh heir siiall be considered to have ^.^j^^, .^^ aciii'.iivd tlie land as a devisee and not by descent ; and where devisee, and any land is limited by any assurance, executed after the said fi limitation to the KrantDr or first davof .luly, ls;}4, to the jiersoii or to the heirs of the ix'rsoii will thi-reby conveys tlie same land, such person shall lie coiisid- lijslu'ir shall • red to liave acquired the same as a purchaser, by virtue of such create an \--unuice, and shall not be considereil to be entitled tliereto as ''state by uf liis former estate or part thereof. K. S. O. 1S77, c. lUo, s. U. '"'inil'i^^'-Vot 3-4 Wm.'iv! c. lot), s. 8. Lml St. Leonards says of this section (r) : — " These are jilterations of fundamental rules, for by the old law the htir, whenever it was practicable, took I'V descent as liis better title, an'c e is made take as a purchaser. Former ride as to remainders: — It was an old rule that a man could not by any form of conveyance whatso- ever, whether by use or by devise, raise a fee simple to his own right heirs, by the name of heirs, as a inirchase. Sucli a limitation to the right heirs would have been a revers'din. not a remainder {ii), and the heirs would have taken by descent (v). Where heirs take by pur- chase under limitations to the heirs of their ancestor the land shall descend, as 16. Where a person acquires land by purchase, under a limitation to the heirs, or to the heirs of the body of any of hi* ancestors, contained in an assurance executed after the tir>t day of July, 1834, or under a limitation to the heirs, or t. ( I') Wills V. Palmer, .') Burr. 2(515 (1770); Read v. Moriieth, Cro. Kliz. 321 ; Cholmondeley v. Clinton, 2 Jac. & W. 1 (1820) ; Locke v. Southw > .1, IM. &C. 411 (1831). Cap. lOS.] ' I 7.7, . , ,,^ ,„ cases, s„ch land .shall de.scend, and fh. a traced a. if the ancestor nantcHn s M f'''"' "'^'■*'"^ '''"^n be if the I-chaser of such land. lt..,s^o'!r!/ ^"^ ''^''^'" "^ ""^^^^^ '"^ ^' '•*' traced has h.ad any relation Ik "^l^"''^'^"' "f «ny land is m. , d'Hl I'-fore s,.ch de.scent k Tj'?;. '^'"•'"f '^-" 'Attainted ^^:.^'t ""' i;--nt any per.son frou. i h« 'ti ''" T. •'^"-■»^- ■^Lall '--" at" iiave been capahle-.f inheriting , "'^'"^ «uch land who would .'■""^•'^'' '"'^ ;;-." such relation if h^hS "t:^ ^^^ '^ ^--t ^^^^^^ "^^^MM83. R.8.0.187,riCr^^^^o.thefir«t J^ W iv. i^n;l.s e.scheated or forfe ted ' / '^^' ^^"^^'^^ *^ ^ako MUuadcr abolished :~.The CvU. • , ^ vuics:- '^ ^'""'"^1 Code, IS92, pro- "'Mm. From and aft<.r ti, ^ made ,. any Act of the Parlian^^ ^ ^ ^T"':'^'' ^^--1 proviso, ■^r;;~'"-'J^-:^":?sr^^^^ ' • •'• " """• «• O. O. 1877, P'^u^'t' entry. '•'»>• "f -liirJs'^T'^' '-^s^'iranee e.vecuted before th. -a . • ""3, i\H, or thn ii.;ii r "ciure tne said fircf ""■ '"■■ "■■ - ...y t,r,; r^rrih"'," •"■«' '■ *- ^'" *° the heir or heirs of ^limitations made hefore iNt Julv, 1«''H, to tlio '"■'I^^'-ne.sv. Fellow.,, ;i.5W R o-n :es '"If ^ ?•',.' 330 BEAL PROPERTY STATUTES. [R. S. 0. i heirs of a iierson then liviii)?, shall take cflfect as if tiiis Act had not been passed. Imp. Act, 3-4Wm.IV. c. lOti, s. 12. Grantees, devisees, etc., shall not take as joint tenants nnless such intention be exjtressed. any person under which the person or persons answering the de.scription of heir is entitled to an estate by purchase, tlieii the person or persons who would have answered sach description of heir if this Act had not been passed shall become entitltd l)v virtue of such limitation or gift, whether the person nann-d a-i ancestor was or was not living on or after the said first day of July, 1834. R. S. O. 1877, c. 10r>, s. 10. 20, Wliere by any letters patent, assurance or will, made and executed after the first day of July, 1834, land has been or is granted, conveyed or devised to two or more persons oth»-r than executors or trustees in fee simple, or for any less estate, it shall be considered that such persons took or take as ti'n;int- in common, and not as joint tenants, unless an intention sufficiently appears on the face of such letters patent, assnninci or will, that they are to take as joint tenants. R. .S. 0. IS", c. 105, 8. 11. The characteristic features of the estate of joint tenancy have been already mentioned in a former chapter (;/ The incident of survivor.ship which distinguished joint tenancy from tenancy in connnon has been felt to !i- unjust; and accordingly the present rule has been enucteii favouring the construction of (^states, where the words u: limitation are not clear, as tenancies in common, ratln': than as joint tenancies. "Other titan executors or trustees": — The incident oi survivorship is a distinct advantage in trust estate.s. ;is it enables the surviving trustee to perform the duties of tlif deceased one, and has not the counterbalancing evil of heaping benefits on the survivor at the expense of tln' non-survivor. nESCEXT.S BETWEEN IST JULY, 1834, AND l.ST JAXUAItY, 1S.>L'. Descents 21. As respects every descent between tlie first day of .Inlv, bet\veenthe 1934^ .^nd the thirty-first day of December, ]8r)l, both liv- 18'i4 and included, and as respects any descent not included or provi.!"! 31st Decern- for in the sections of this Act numbered fri>m 31 to .')7. \rM ber, 1851. inclu' led, the following sections, numbered from 'JU to 2ti, bi'th included, shall a])i)ly retrospectively to the first day of .fiih. 1834, and also prospectively as the case may 1m', and shal! ^■'' construed an if the same had been jtassed on the said tirit day of July, 1834. R. S. O. 1877, c. 105, a. 12. (y) See sujira, 0. 100, s. 5. „.***> s.o. ini? thp l\eu the |itiiin iif itli-d by it day (li 11, madp ,s bi'tn (it nns other ( estiitf. it \s teiKint- inteutioii assiiriino' H. O. KT. , tenancy iptev (,*/'• led joint ilt to 1" H enactf'l words o; n, ratli»'.' Iicitlent oi ,iitos. as it .I'S of til'.' Ivf evil of ise . of the llN)'! It day of •1"1^' 1\, Until d.lV- |(\ (ir iirovi'l"' l3l to;>i, both loo to -J''. ^'''' "day of .l"b. and sliall 1- |.sai- uf there being no descendant of such lineal ancestor ; so '-•'ainiiiig ti.i't tile father shall be preferred to a brother or sister, and a j,j,„ ^ Init). Act, 3-4 Wm. IV. c. liW>, s. tj. All that is left of this section is contained in the words ' Every lineal ancestor shall be capable of Ijcinr;- heir to any of his issue." 'No thut a father (/>) shall be preferred,'' : — This is superseded by the later provision contained in section I.) 1 Ventr. 41.3. (") L. K. 1 C. P. ;«9 (186()). . ('-) See in Re Don's estate, 4 Drew. 104 (1S,')8). as to father of son legiti- "1 A(i by marriage of parents. See also I).)e v. Vardell, 7 CI. & F. 8!)5 (1840) ; ": ■ Sliaw V. Could, L. R. 3 H. L. 55 (1850). '•'If , 1^ II ■ -I 332 REAL PROPERTY STATUTES. [R. S. 0. '* And a more remote lineal ancesfov" : — This is also superseded by the hiter provision in section G. The former rule excluded the ascent of an estate : " It is impossible for tiie father to be heir imniediatel}' to th-.- son; nay, the law says, tlie land shall rather escheat "('■). This rule was complicated by the alisurd exception that tiit- father or mother might inherit as cousin, that which was denied them directly. Thus in Eastwoode v. Viiike (d) jj was objected that " the father or mother, grandfather or grandmother cannot take as heir to their son or gi-andson : they may, it is true, inherit by circuity, as thus : the uiu'e may take as heir to the son, after which the father ur mother may take as heir to the uncle, but the father oy mother cannot, as in the present case, succeed immediatuly and in the first instance to the inheritance of the son. " On the other side it was said, and so ruled by tlie Master of the Rolls, that though a father or mother couM not as father or mother inherit immediately after the sou : yet if the case should so happen that the father oi' mother were cousin to the son, and as such his heir, thev ini^ht take notwithstandinir.' Tlie male line to l)e preferred. Imp. Act, 3-4\Vm.IV. c. 10(5, s. 7. 24. Xoiie of the maternal ancestors of the jierson from wlvw the descent is to be traced, nor .any of their descendants shall I'-- capable of iniieritiner until all his paternal ancestors and their descendants have failed ; and no female paterjial ancestfir of such person, nor any of her descendants, shall be capa))!' "f inheriting until all his male paternal ancestors and their desLHui- ants iiave failed ; and no female maternal ancestor of .-uh person, nor any of her descendants, shall be capable of inhciit- ing, until all his male maternal ancestors and their descendant* have failed. R, S. O. 1877, c. 10"), s. 15. The mother now shares equally with the father, accorl- ing to section 6 supra. Proof of e.vhaustion of patermd line: — Under this and the next succeeding section, it was necessary for a (c) Cowper v. CowiJer, 2 P. Wms. 734 (1734). (d) 2 P. Wms. (il3 (1731). 1 ^^^,. C;.p.l08, EXHA USTION OF SUPERIOR LINES. 333 partv claimint^ tlirough a maternal ancestoi' to produce at trial reasonable evidence that the paternal line was exluiUHted, and also that the superior maternal lines were exhausted (e). 25. Wliere there is a failure of male paternal ancestors of the lit- ison fnmi whom the descent is to be traced, and their descen- dants, thu mother of his more remote male paternal ancestor, or her descendants, shall \io the heir or heirs of such iHjrson, in preference to the mother of a less remote male paternal ancestor, (ir her descendants ; and where there is a failure of male maternal ante.itiir.s of such iierson, and their descendants, the mother of remote male liis more remote iale maternal ancestor, and her descendants, ancestor. shall be the heir or heirs of such person, in preference to the „ J^S^'" "Yv' nil ther of a less remote male maternal ancestor and her descen daiits. H. S. O. 1877, c. 105, s. 16. The mother of the more remote male ancestor to be pre- ferred to the mother of the less 0. IW), 8. 8. " This adopts Blackstone's well known view, which it is conceived is the true rule " (/). Proof of exhaustion of superior lines: — It is necessary to produce reasonable evidence of the exhaustion of the superior maternal lines, as well as of the paternal line (g). 26. Any person related to the person from whom the descent is to lie traced l)y the half-bl tance. mean real estate as herein defined, descended or succeeded ti. according to the jirovisions of the said twenty-seventh section^. R S, O. 1877, c. 105, s. 19. "Legal and cqititahle :" — The better opinion was that equitable estates followed the same rules of descent as {h) See section 4 (1) supra. (0 .Tessopp V. Watson, 1 My. & K. 005 (18.33) ; Burnet v. Mann, 1 Vt*. Sen. 15G (1748). See further under section 44 infra. (j) 14 & 15 V. c. (Can). (A) 4!) V. c. 22 (Ont). Cai>. lOS.] DESCENT PER STIRPES. 335 le-^al (/) : so the present section has not made any chang-e in this respect. sectinns 31 to 57. 29. Where, in the said sectionn, numbered from 31 to 57 Interpreta- both iiicliuU-d, .any person is described as living, it shall be tuni as to^ mulerstdiid that lie was living at the time of the death of the intestate from whom the descent or succession came, and wheff .any person is described as having died, it sliall be under- st(«)(l that he died before such intestate. K. S. O. 1877, c. 105, s. 20. " As living" : — This wouki incKide a chikl en ventre mmere{m). i v sections 31 to 57. 30. Where in .any of the said .sections the expressions Interpreta- "where the estate came t5) ; Mogg v. Mogg, ■- ■•■» (1^15). See al.so Clarke v. Blake, 2 Bro. C. C. 321 (1788) ; Cooper V. horbes, ,;,. (iu ; Freemantle v. Freemantle, 1 Cox, 248 (178H); Re Corlass, 1, lliy. 1). 4t;o (1875) ; Rawlins v. Rawlins, 2 Cim. 425 (1790) ; Northey v. .\r.inge, IP. Wms.341(171»J). i ■ T :l H- iM rv r 336 REAL VROPEIITY STATUTES. [R.S.O, nine grandsons, one of whom was an only son, and the other eight brethren ; then if the division be per stirpes, the only son shall take half the goods as representing one of his grandsire's two children ; if the division be per ccqnta he shall take a ninth part only as being one of nine grandsons " {n). " Stirps, L., a root, stock ; source of descent. Taking property by representation is called succession in stirim or 2^er 8tir2)es, according to the roots ; since all branches inherit the share that their root, whom they represent, would have inherited. Whence "stipital distribution "(o), The statute 22 & 23 Car. II. c. 10, provided as to personalty for this method of distribution in the words " to and amongst the children of such persons dying intestate and such persons as legally represent such children in case any of the said children be then dead "(p). So that in this respect the law is unchanged by the pro- vision in section 4 supra, providing that the property shall be distributed as personal property. Misleading effect of section : — Leith says of this sec- tion, " The wording of the 22nd section (q) requires explanation as it is somewhat calculated to mislead. It enacts that the estate shall descend to the lineal descendants of the person last seised, and those claiming under them, ^^er stirpes. Now this expression at the out- set would lead to the inference that the common law rule of succession per stirpes was to be the prevailing feature in the statute, whereas it is just the reverse ; and it is the civil law rule of succession pt^f capita that prevails, and descent ^^er stirpes only takes place as an exceptional case as will be seen by the sequel " (r). (n) Wharton Law Lexicon, 7th Ed. 616. (o) Anderson, Dictionary of Law, 974. {p) Section 3. (q) Now the 31st. (r) Leith's Blackstone, 473. ^:' % ..f*^ ■ i 'if Cu.. io-<.] coz;a.4 r/;/?.j /; n/:LA ti ves. 337 To Itis fdther : — The law as to the distribution of per- iionalty favoured the father but placed the mother and lirothers and sisters on an equality (s). Section G supra, places the father upon the same eijuality. Colhderal relatives or kindred are those wliich descend from the same stock or ancestor as the lineal relations but do not descend from each other {t). The strict and accurate meaning of " relatives " is "legitimate relatives " (-it). " The word relations taken in its widest extent embraces an aliaost illimitable range of objects ; for it comprehends persons of every degree of consanguinity, however remote and hence, unless some line were drawn, the effect would be that every such gift would be void for uncertainty, hi order to avoid this consequence, recourse is had to the Statute of Distributions; and it has been long settled, that, a beijuest to relations (v) applies to the person or persons who would by virtue of those statutes, take the personal estate under an intestacy, either as next of kin, or by representation of next of kin , . . , The rule which makes the Statute of Distributions the guide in these cases in not departed from on slight grounds " {w). 32, If the intestate leaves several descendants in the direct As to des- line of lineal descent, and all of equal degree of consanguinity cendants in to such intestate, the inheritance shall descend to such ))ersons „|.,jyg ^f ' '11 equal parts, however remote from the intestate the common consangui- le^ree of consanguinity may be. R. S. O. 1877, c. 105, s. 23. "ity- (.«) 1 .lac. II. c. 17, 8. 7. ■ (t) Wharton's Law Lexicon, 7th Ed. 1C4. (m) Per .Sterling, J . , in Jodrell v. Seale, W. N. (1889) 230. (i) Or "relation" Pyot v. Pyot, 1 Ves. Sen. 337 (1749) ; or " relatives " Fuldoii V. A.shworth, L. R. 20 Eq. 410 (1875) ; Eagles v. Le Breton, L. R. 15 Kq. IW (1873) ; See also Laulor v. Henderson, Ir. Rep. 10 Eq. 150 (1876) ; Hibbert v. Hibbert, L. R. 15 Eq. 372 (1873). (k) Jarman on Wills, 5th Ed. 972. H.R.P.S.— 22 i m HI Wi ^rma^ Inrt '^ ^ V ' IP' ■yiU -li :j88 ii/-:.iL I'Roi'Kin'Y .sTATrrjj.s. [II. s. 0. p/j-.v f^ i:if'- li ;-ir: * - ; ■ ;5C -!■' fS,' *ii ^i' sS*' 11 IpJ; MK ii'*- I. 1 ( I I ')! This introduced descent ^>»e/' t'((y><7aanion{^ those in (>(m;i! degrees of consanguinity. If SOUK' cliildreii bo liviiiK and others deiul leaving isHUt'. Same rule as to other descendants in iine({ual degrees of consangui- nity. If tlie intes- tate leaves no descend- ant, right of father, mo- ther, etc. If there be no father entitled to inherit. And if there is neither father nor mother. 33. If one or more of the children of such iutcNtatf j'l^ living; and one or more are deail, tlie inheritance shall discfnl to tiie children who are living, and to the desoendants ot siieli cliildren as have died ; so that eivcli child who is living .>ii,ill inherit such sluire as would have descended to him it all tlic children i>f the intestate, who have died leaving issue, had U .u living; and s(j that the descentlants of each child wlio is diad sluvU inherit in equal shares the share which their parent woi.Id have received if living. R. S. O. 1877, c. 105, s. 24. 34. The rule of descent prescribed in the last prt^ediii^' section sluvll ajjply in every case where the descendants uf tiie intestate, entitled to share in the inheritance, are of untqi.al degrees of consanguinity to the intestate, so that those who lav in the nearest degree of consanguinity shall take tlie sliait! which would have descended to them, had all the de^c'iulai.t- in the same degree of consanguinity who liave died lea\ ing !><••, been living, and so that the issue of the descendants who liavc died, shall respectively take the shares which tlieir parents, ii living, would have received. K. S. O. 1877, c. 105, s. 25. 36. In case the intestate dies without lawful descondant- and leaving a fatlier, then the inheritance shall go to .siah father, unless the inheritance came to the intestate on the part of his mother, and such mother is living ; and if such mother i? dead, the inheritance descending on her part shall go tu tli'- father for life, and the reversion to the brothers and >i!'ter8 of till! intestate and their descendants, according to the law uf inheritance by collateral relatives heieinafter [jrovided ; and il there are no such brotliers or sisters, or their descen(hiiits living, such inheritance shall descend to the father. K. S. O. 1877. c. 105, s. 2(i. 36. If the intestate dies without descendants and leavin? no father, or leaving a father not entitled to take the inlieritanf. under the last preceding section, and leaving a mother an; brothers or sisters, or the descendants of brothers or sisters, tlit:i the inheritance shall descend to the mother during her lifr. and the reversion to such brothers or sisters of the intestate, a> are living, and the descendants of such as are dead, according to the s.ame law of inheritance herein.ifter provided ; and if th- intestate in such case leaves no brother or sister, iu>r any des- cendant of any brother or sister, the inheritance shall descend to the mother. R. S. O. 1877, c. 105, s. 27. 37. If there is no father or mother capable of inheriting the estate, it shall descend in the cases hereinafter siiecified to the collateral relatives of the intestate ; and if there are several ■ i ii^. t .J Cap. W.] SUCCESSION OF ESTATES. \Wd (.uch relatives all of equal degree of consanguinity to the intes- tiitp, til*' inhf'ritance uliall descend to them in equal parts, however remote from the intestate the connnim degree of uonaaiiKuinity may be. R. S. O. 1877, c. 105, s. 28. Sucoessioii of brothers and sisti'vs and their descend- ants. 33. If all the brothers and sisters of the intestate are living, the inheritivnce shall descend to such brothers and sisters ; and if any one or more of them are living and any one or more are (lea'l, then to the brothers and sisters and every of them who are living, and to the descendants of such brothers and sisters as have (lied, so tiiat each brother or sister who is living shall inherit such sliare as would have descended to him or her, if all the brothers or sisters of the inrx-state who iiave died leaving issue had liuen living, and so that such descendants shall inherit in (■<|ual shares tlie share which their parent, if living would h;ivH received. R. 8. O. 1877, c. 105, s. 29. 39. The same law of inheritance j)rescribed in the last As to such seetinn shall prevail as to the other direct lineal de i-end.ants of descendants every brother and sister of thf^ intestate, to the remotest degree, (jj^^rrfes wherever such descendants are of unequal degree. R. H. O. l>s:7. c. 1II.J, s . 30. 40. If tiiere is no heir entitled to take under any of the lireceding thirteen .sections, tlie inheritance if the same came til the intestate on the part of his father, shall descend ; Firffhi. To the brothers and sisters of the father of the intestate in equal .shares, if all are living ; Secowlhi. If one or more are living, and one or more have (lied leaving issue, then to such brothers and sisters as are living, and til the descendants of such of the said brothers and sisters as iiave died- in equal shares ; Thinlhi. If all such brothers and sisters have died, then to their descendants ; and in all such cases the inheritance shall (ii-.>cend in tlie same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. R. S. O. 1877, c. 105, s, 31. If there be no heir under the lireceding 13 secti,)ns. ■^^':\ ■J ^ i 41. If there be no brothers or sisters, or any of them, of the Further father cif the intestate, and no descendants of sucii brothers or l"'"^'''^"'"' Msters, then the inhoritiince shall descend to the brothers .and MfXf. of the mother of the intestate, and to the descendants of Mich (if the said brothers and sisters as have died, or if all have died, then to their descendants, in the same manner as if all Mieli brothers and sisters had been the brothers and sisters of the 'i'ther. R. S. 0. 1877, c. 105, s. 32. 42. In all eases not provided for by the next preceding Further fifteen .sections, where the inheritance came to the intestate on l>i'>'^"!'«i"» 'f ' h. 840 SEAL PHOPEHTY STATUTES. [R..S.(). the t'Ntiit*' ciiiiif I'll the llUltlnT'.H xide. Tf fstiitp c'liniint'itlit'r on futln-r's iioriiiotluT'H Nidu, Half blood to succeed with whole bltliern and sisters or desciMidants of them, then the inherit- iince HJiall descend to the brothers and sisters, and tlirir descendantM, of the intestate's fatlier, as before prescnlH-d. K. S. (). 1877, c. 105, H. 33. 43. In cases where the iniieritance eluded from such inheritance. U. .S. U. 1877, c. 105, 9. 35. The subject matter of this section will now, in accui'l- ance witli section 4(1) supra, be governed by the Statute uf Distributions. Half Blood : — Under the statute 1 Jac. II. c. 17, brothers and sisters of the half blood of an intestate are eiiiuilly entitled with brothers and sisters of the whole blood to shaiv with their mother, after tlie death of the intestate's fatlier, in the personal property of the intestate dying without wife or children («). Moreover it has been held that a 'jiost humous brother of the half blood takes under the Statute of Distributions (?/). Those of the half blood hr, always an equal share with those of the whole b! "^ i !l:3: t'f*^ ■ ^ m I If (jc) .Tessop V, Watson, 1 Myl. & K. 065 (1833) ; Crooke 121 (1G90). {ij) Burnet v. Mann, 1 Ves. (Sen.) 156 (1748). (:) Winchelsea v. Norclitfe, 1 Vern. 437 (1686). itt, 2 Vern. C«i'.ll»»*] /'itsTiicMurs I II 1 1. hit US'. :U1 III CAM'* nut proviih'il for •2-2'AVi\v. II. c, 1*1, iiiul 2'.> Cur. II. (!.:», to iipply. CD-htir^ t') tiikt' im tciiiintH in t'uiiiinoii. 48. On fiiilnri' of lifiM under tin- pruct-dinK rnlf^, tlu' inlifntano' slmll ilcsofUil tit tlic rfniiiinin>f n«'\t uf kin of tln» intcitatc, iiccDnlinh' to tin- rulcH in tlm KnKli-li St.itnte of IHstrilmtiiin of iVrstmal KHtate. K. S. O. 1^77, c. 105, s. 'M. 46. When' tluTu in lint one iKTson entitled toinlieritHceurdinj; to the [irnviiions of m'ctiun -7 iinersi>ns not 1' J / 1 1^(1- 1..- .>!. to inherit, ti. >. O. 1>!I(, c. 10.-), s. 8'.>. Ct'. the note, Property of Foreir/nersi under 4 (1) ftupra. 49. Tlie estate uf the husband as tenant by the curtesy, or Curtesy, "f I widow as tenant in dower, siiall not be affectef>rson but all such estates shall remain, pass and descend, as if the lant twenty-two sections of this Act numbered from 27 to 4"*, lK4h included, had not been passed. I?. S. O. 1877, o. lo5, s. 40. For present state of law as to tenancy by dower or curtesy, see section 4 (2), 4 (3) supra. Cases of children who have lieen ad- vanced by settlement, etc. If .such ad- vancement be not equal. Value of property ad- vanced, how eHtiniated. 80. If any child of an intestate has been advanced l>y the intestate by settlement, or portion (>f real or personal fxtate, or both of them, and the same has been so expressed by the intestate in writing, or so acknowledged in writing by the child, the value tliereof shall be reckoned for the purpose.s of tills section only, as part of the real and personal estate of such intestate descendible to his heirs, and to be distributed to his next of kin according to law ; and if such advancement is equal or sujjerior to the amount of the share whicli such child would be entitled to receive of the real and personal estate of the deceased, as above reckoned, then such child and his desct-ndaiitH shall be excluded from any share in the real and iiersonal e.st.ite of the intestate. R, S. O. 1877, c. 105, s. 41. 61. If such advancement is not equal to such share, such child and his descendants shall be entitled to receive so nuich only of the j)ersonal estate, and to inherit so much only of the real estate of the intestate, as is sufficient to make all the siiare.- of the children in such real and iiersonal estate and advancement to ho ecpial, as nearly as can be estimated. K. S. <). 1877, c. 105, s. 4L'. 52. The value of any real or personal estate so advanced shall be deemed to be that, if any, wliich has been acknowledged by the child by any instrument in writing, otherwise such valut. shall be estimated according to the value of the property when given. R. S. O. 1877, c. 105, s. 43. Education, 63. The maintaining or educating, or the givini? of nione • etc., not ad- to a child, without a view to a prjrtion or settlement in life shiiH \ ancemen . ^^^^ ^^ deemed an advancement within the meaning of this Act. R. S. O. 1877, c. 1C5, s. 44. "So ex/tressed by the intestate in writing" : — It might have been well to continue this provision in The Devolution of Estates Act ; Spragge, V.C, says of it : " The provision that the advancement shall be expressed or acknowledgt'l to be such in writing is not in the English statute (c). It (c) 22 & 23 Car. II. c. 10. hi (,..•,, l.K] ADVAXCKMEXT AXD HOTCHPOT. 343 was probably introduced into our statute to avoid the (luestions which have arisen as to what constituted an nilvancement " [d). It will be appropriate to give, here, an account of the present law relating to advancement, under the Statute of Distributions, by which the above sections 50 to 58 have Ixvu superseded in accordance with the provision contained in section 4 (1) supva. Advancement and liotchpot: — Hotchpot (also spelled hodge-podge, hotchpotch, hotspot) is the blending properties iMjlonging to two or more persons in order to make an eiiial division as where advancements are treated as returned, and the estate as a whole divided anew (e). Tiie general rule under the Statute of Disti'ibutions is that an advancement must be brought into hotchpot. Thus it was held that an advancement of personal property to the eldest son must be brought in (/) ; though uny land provision to the heir-at-law of the intestate, h.owL'ver given, is privileged by the Statute of Distribu- tions, and not to be brought into hotchpot (f/). Advancement mii»t he during inte.^t((te'K lifetime: — I admit that a provision for a child by will (for a ease may happen, that as to part of the personal estate the testator may die intestate) is not an advancement to lie Ijrought into hotchpot; neither shall land given by a will to a [younger] child (A) ; for a provision to be brought i'l) Filnian v. Filnian, 15 (Jr. CAH (ISfi'l). .<••• :ilso Phillips v. Yarwood, -1 lii'. ('i22 (1S74) jis to what constituted t\ iintchput claiisf. (') AiKki-fion's Dictionary of Law, T)!."). Vw history af the word see Skua's Etymological Dictionary. (/) Kirciulhrigiit v. Kircudbright, 8 Vos. 51 (l.SO'J). '.'I Kihvards v. Freemen, 2 P. Wnis. 440 (1727). Of course this exception i" u . Imgrr existent in Ontarit) as far as the eldest son is concerned, the right '1 priiuogeniture having been abolished («■" introductory note to the present i-hiDttr). \l>) Cf. Lntwycke v. Lutwycke, Forrest 277 (1800). h. zi ■'' '" 344 REAL PROPERTY STATUTES. [R. S. o. into hotchpot must be such as is made by an Act in the intestate's lifetime and not by will " (i). Wliit constitutes an advancement reguiring to I,; brought into hotchpot: — Taylor v. Taylor (j), is an inter- esting case bearing on this subject ; Jessel, M.R., considering " that an advancement by way of portion is somethino- given by the parent to establish the child in life, or tD make what is called a provision for him, — not a mere casual payment. Accordingly he held the following to be advancements by portion: — (1) Payment of the admission fee to one of the Inns of Court in the case of a child intended for the Bar (k) ; (2) the price of a commission and outfit of a child entering the army (I) ; (3) the jn-ice of plant and machinery and other payments for the purpose of starting a child in business. He also held the following not advancements by portion : — (1) payment of a fee to a special pleader in the case of a child intended for the Bar; (2) price of outfit and passage money of an officer in the army and his wife on going out to India with his regiment; (3) payment of debts incurred by an officer in the army ; (4) assisting a clergyman in paying his housekeeping and other expenses. Taylor v. Taylor was dissented from by Pearson, J„ in Blockley v. Blockley (m), more particularly as to the pay- ment of debts by the father : " With all deference to the Master of the Rolls, I cannot agree in his view. I think that a sum of money given by a father to his son to pay his debts, is or may be, an advancement as much as a sum of money for any other purpose. In Boyd v. Boyd (h). (0 lb. at p. 440. (,/) L. R. 20 Eq. 1.55 (1875). (k) Or of articnng him to a solicitor ; Boyd v. Boyd, L. R. 4 Kq. .WJ i ltt)7 . (/) See Kircudbright v. Kircudbright, sunni ; Andrew v. Andrew, _'.' W R. 682 (1874) ; lioyd v. B-.yd, L. R. 4 Ecj. 305 (18»;7). ()/i) L. R. 2» Cli. D. 252 (1885). (.11 L. R. 4 Eq. 305 (18(57). 5.0. the I.; nter- thin'.; or to luere r to be uission a child mibsiou price 0? purpose Alowing fee to a the Bar. er in tk es^iineiit . le army • .ping and bou, J.."^ the pivy- lice to th'^ 1 think on to pay as i\ ^«i" Inclrt- w. - " Cap. 108.] AXyriTIES AS ADVAyrKMKXTS. 345 Wood, y.C, said, ' Wherever a sum is paid for a particular purpose, which is thought good and right by the father, and which the son himself desires, it' it be money which is drawn out in considerable amount, and not a small sum, it must be treated as an advance. The payment of the money is the important thing — the Court does not look to the appli- cation. As to the debts, suppose the young man had represented to his father that it was extremely important they should be paid, in order that he might keep his posi- tion in tiie army, and the father had paid those sums in order to assist him, it would have been clearly an advance.' I cannot conceive stronger language than that. In my opinion if a sum of money is paid by a father for the benefit of his son, it is an advancement by portion!' Repairs not an advancement : — Where the intestate laid out money in repairs on houses that descended to his eldest son it was not considered an advancement, the houses not having been given to the son during the father's life- time (o). Annuities as advancements : — In Hatfield v. Minct (p), by a deed of separation the husband covenanted to pay an annuity to each of his daughters during their respective lives, such annuities to cease if he should again cohabit with wife, which event did not happen. The husband survived his wife and died intestate and it was held that so much of the annuities to the daughters as were paid during their father's lifetime were n(jt in the nature of advancements : and that the value of each annuity must be estimated at the death of the intestate and the amount brou<;ht into hotchpot. The circumstances of contingency surrounding the granting of the annuities in this case made the court unwilling to consider the payments in the intes- t^ite's lifetime as advancements. The case does not, liow- {») Sniitli V. Smith, 5 Ves. 721 (1801). (/>) L. R. .S,Ch. D. 130(1875). m ».?,! m •If s -ji; 1^ ^f I '\ I 1 846 REAL PROPERTY STATUTES. [R. S. 0. ever, lay down any general rule on the subject ; anil an annuity may under other circumstances be an advancement. Thus in the case of Kirciulbright v. Kircudbright (q) an annuity was considered to be an advancement to be brought into hotchpot, i.e.. at the option of the child to bring in the value of the annuity at the date of grant, or of the pay- ments received (the annuity then ceasing). Where an annuity or rent is charged upon land in favour of a child [formerl}' of a younger child, not of the eldest or heir-at-law (r)] it was an advancement (»). Sum settled on advancement : — Where a sum has been settled on a son's marriage, the son to take a life estate in same, not only the value of the life estate but of the whole sum is to be brought into hotchpot (0- Advancement by ividow : — "It weighs with me, that this Act of Distribution was grounded on the custom of London, which never affected a widow's personal estate : and the Act seems to include those within the clause of hotchpot, who are capable of having a wife, as well as children, which must be husbands only ; and so in this case, (though without much debate) his Lordship ruled that tlu' daughter should not bring the £1,000 which she Iiad received in her mother's lifetime into hotchpot " (ii). Widoiv not benefiifed by bringinrj into hotclipof : — Tlu' bringing into hotchpot is for the benefit of the chiMron : the widow does not take any increased share thereby ('). (q) 8 Ves. 51 (1802). (r) Cliantrell v. Chantrell, :'.7 L. T. N. S. 220 (1878). (.1) Edwards v. Freeniun, 2 P. Wins. 443 (1727) ; cf. Pratt v. Pnitt, Fitw. 284, Stra. 935 (171!>). (I) Wayland v. Wayland, 2 Atk. (>35 (1742) ; see also Phiuey v. I'liiiiey, '-' Vern. 6;« (1708). («) Holt V. Frederick, 2 P. Wins. 35(> (1720). (v) Kircudbright v. Kircudbright, 8 "Ves. 51 (1802). f i Cm- l<^^l PERSONAL ESTATE OF INTESTATE. 347 Ah to the purchase by any of the parties in- terested of real eHtiite subject to partition. 84. The parties authorized to make partition of any such real estate according to law, shall receive from any of the iicrsons entitlnd to a share of such real estate, an offer or proiwsition to purchase tlio share or shares of tlie other parties interested therein, giving the preference to the jierson who would have been the heir-at-law thereto, hail section 27 and the following sections of this Act not l)een passed ; and next after such heir- at-law, giving such jireferenco to the several jiersons successively who would have been such heir-at-law, had the said last mentioned sections of this Act not been passed and had those Ijersons preceding them resjjectively in the series of such pre- ference been dead at the time of the death of the intestate. R. S. 0. 1877, c. 105, s. 45. 55. The parties so authorized to make such partition shall certify particularly to the Court in which proceedings for a partition are commenced or |>ending, the i)articulars of such I'tfer or proiKisition for purchase, the nature, quantity and vahif of the estate or share proposed to be purchased, and wlu'ther they advise such offer or projKisition to l)e accepted or rejected, and their reivsons therefor. R. S. O. 1877, c. 105,s. 46. 56. Any Court authorized to make partition of real estate i;iay direct a sale of the same if it thinks it right so to do, ujkju tlu- ii()i(lieation of any of the [)arties beneficially interested there- in, giving however the preference at all times to the i>erson who wiiulcl have In-en the heir-at-law to such real estate had section ■-'7 and the following sections of this Act not l)een passed, and afttT such heir-at-law, then giving such preference to the several persons successively who would have lH>en such heir-at- law, had tlie said last mentioned sections of this Act not been passed, and had those ixjrsons preceding them respectively in the ->ries of such j)referenco been dead at the time of the death of the intestate. R. S. 0. 1S77. c. 105, s. 47. 67. Every srjch preference shall be uiwn and subject to such Terms on tTms. security and conditions, as the Court thinks it right to which pre Particulars of offer to purchase to be certified tj the Court. Any Court authorized to make partition may direct a sale, giv- ing prefer- ence to the heir-at-law. hrect. R. S. O. 1877, c. 105, s. 4S. ferencf to bo given. Cf. notes uiulor Chap. 104 mqtra, a.s to partition. .■.;f|* ■ m '& The foUowing table ha.s been found u.seful l)y practi- tioners for the quick solution of problems in distribution ; reterenccs are added to the pages of this work to shew the law relating to realty as well as to personalty : — ;•*!! >. :.,^ h ' i :U8 REAL PROPJCRTV STATUTES. [R.S. (», Pkksonal Estate of Intestates Since July 1, 1886— Ontario. ir the IiiteHtate rl)e leavinf^ : Wife and child or children . . . . his ijerwnal reijresentatives take thus, viz., One-third to wife, rest to child or uhildrm ; if children dead, then to their rejjresenta- tiveH (that is their lineal descendants i, except such child or children (not lieii>- at-law) who had estate by settlement of intestate or were advanced by him in his life-time equal to the other shares. \S.:( pp. 2!)4, 25(5 and notes under section h'd.] (Half to wife; rest to next of kin, in ecjual degree to intestate, or their legal rejire- sentatives, or if no next of kin, to the Crown. {See pp. 2<.)5and S03.] V . ,„;*„ „- „Kiiri / -^1' *" *'i® "*"'' "^ '''"' ""fl '" t'^'if legal N o wife or child | representatives. [See p. 2<.tr,. ] Children by two wives Equally to all. \See notes under sec. 44.] If no child, children or repre- / All to next of kin, in equal degree to im« s- tives \ tate. [See p. 2f>5.] Child or grandchild by deceased / Half to child, half to grandchild, who takes child . . . .• \ by representation. \See p. 295.] u.,„> I i„ / Half to him and half as if he had preiK - Husband only | ^^^^ intestate. [See p. 306.] Husband and child or children { ^hmj to husband and two-thirds to children. Father and mother Equally to b()th. [See p. 307.] Father, mother, brother or sister. Equally to all. [See p. 307.] Mother and brother or sister Whole to them equally. [-See p. 303.] Wife, mother, brother, sister/ Half to wife, residue to mother, brotliers. and nieces \ sisters and nieces. [See pp. 295, ;<00.] Wife and father Half to wife, half to father. [See p. 295.] r Two-fourths to wife, one-fourth to inotii»-i. Wife, mother, nephew and nieces-! and one fourth to nephew and nit-c*-. (. [See p. 300.] \\ne^ K-.fi,^, „.. »;..t„- „„j f Half to wife (under Stat, of Chas. II.) Half mothei- . . . . . . . 1 to brothers, or sister and mother. [« . p. \r^«.i,„. ^^i„ f The whole (it being then out of the statute). Mother only | ^ ^^^^ ^ g,;.^ ^,^ ^ l^^^ ^^ «ec. 31. ] . Wife and mother Half to wife and half to mother. [Ditto.] Brother or sister of whole blood ( and brother and sister of half-! Equally to both. [-S'et! notes under sec. 44.] blood ( Posthumous brother or sister / Equally to both [See notes under sees. 44, and mother \ 47.] Posthumous brother or sister, ( and brother or sister born in-! i}qually to both. [Ditto.] lifetime of father (, Father's father and mother's f ,,„,.„..„ , ., re»-„ -im ^ njother \ *'1"*"y to both. [See p. 301.] Uncle's or aunt's children, and ( bn)ther'8 or sister's grand- -^ Equal to all. [5ee p. 300.] children (^ Grandmother, uncle or aunt All to grandmother. [See p. 300.] Two aunts, nephew and niece . . . Equally to all. [See p. 300.] Uncle and deceased uncle's child . All to uncle. [Sec p. 300.] Undo by a mother's aide, and ( deceased uncle's or aunt's-! All to uncle. [.?^e p. 300.] child i 4) .'.■ifl'i ' ,-f m^ c.n>. los.] I'EllSOXAL ESTATE OF INTESTATE. 349 m Pkhsosal Estate ok Intestates Since July 1, 1886 -Ontakio. If the IiitestatB die leavinj? : his personal reprenentativea take tluis, viz., NVphHu; l.v brotl.er aiul nephew / y ^^ y„. ^^^^ g^o.] hy hiuf sister i ' •" "• ' •■ r.riitliers or sisters, and nephews / Whole, tlie nephews or nieces, takinp per nr nieces t .ilirjif.s and not /xr capita. [So- p. 205.] Neplu-w, hv deceased brother J j,^,, j,, equal shares y.r .r./.,7,« and not ;><-- and ne,.hews and nieces by-"! ^^^^ '^_^,.^ ^J ' dectM-(i-(l sister I, •* "• '' ' -■ I'liothtr and (grandfather All to brother. [See p. 301.] Urothji-s (grandson and brother ( r^^ ,,^, ,,4^^. [.S.. p. 300. note (.).] or Histor s daughter t, " l i 1 \ i-j r.rotht-rs and two aunts To brother. [Sir p. ;100.] Urotinr an. 20.5.] Mother and brotlier Equally. [See p. 20(>.] ,,.., ^. „ „i :m_„„ ,t( Half to wife, one-fourth to mother, one- Wife, "xf"''- or children of I j,^,,^^,, . '^f. ^,^ deceased brother or deceased brother or sister . . . ]^ ^.^^^^,^ children. [.S-- pp. 2<.l.5-2im. ] Wife, brother or sister, and T Half to wife, one-fourth to hruthei or sister chilibvn of deceased brother-j per capita, one-fourth to deceased brotiier or si.ster. I. or sister's child jier stirpes. [See p. 295.] Brother or sister and children ( Half to brother or sister per rajiitn. half to of a deceased brother or-! children of deceased brother or sister ^wr sister. V. stirpes [.'^ee p. 205.] (irandfatlier or brother All to brother. [See p. 301.] Desceiulants of intestates always take^xr stirpes ; He Natt, 37 Ch. 1). 517. ill R. S. 0. 1887, CHAPTER 111. I ' K. S. 0. 1887, CHAPTER 111. '■Jff, \'^M m^ 1 1 1 i "1 f m I 1 v_ All Act respecting the Limitation of Actions reluting to Keal Property, and the time of Prescription in certain cases. Shokt Trn-K, M. 1. iNTEhl'UKTATION, S. 2. CoMMKMKMEXTOF ACT, H. 3. I'EHi"!' OK Limitation— TEN vEAHf AFTKH KIGHT OK ACTION ACCUrEl), s. 4. When hkihts ok action oekmeu to HAVK ACCHLEl) : Ox lilSl'dSSE-SSlON, S. 5 (1). Ox AltATKMKST OK DEATH, S. 5(2). On ai.ikxatk)N, is. .") (3). Wii.i) lands, 8. 5 (4). HkNT INDEU I.EAfSE, S. 5 (5). TkXAXCY KKOM VEAU TO YEAH, S. 5 ((■>). TkNAXC'Y AT WILL, s. 5 (7, 8). I'nuKKrnr.E or bkeach of condi- tion, s. ."> ((», 10). FlTlUE ESTATES, S. 'i (10-12). rr.iiKH) >SKS! I'OSSE.SSION OF THE HEIHS, S. 12. .\i KNOW LE DOM KNT TO HE EQUIVALENT To POSSESSION OH KECEIIT OF liKXr, S. VA. lii:Ci:i|T OK KKNT TO BE DEEMED l.ECEll'TOK I'HOKITS, S. 14. KliiHT OK PARTY OVT OK POSSESSION KXTINOriSHKD AT THE END OF THEPERIoli LIMITED, S. 15. Actions for arrears of doweh. rent and i.ntere.st to be withi:, SIX YEARS, SS. lU-18. MORTCJAGOR OUT OK POSSESSION BAR RED AKTEK TEN YEARS, S. lit. acknowledu.ments, ss. 20-21. Mortgagee barred after ten YEARS, s. 22. Actions for money charged on LAND and LEGACIES, SS. 23, 24. Actions for dower, ss.25, 2(5. Bar of estates tail. ss. 27-2tt. LiMIT.VTION OK equitable CLAIMS, SS. 30-.S3. Easements ; Profits a prendre, s. 34. Rights of way, water and other EASEMENTS, S. 3"i. Light, s. 3(5. Interruptions, s. .37. Pleadings in actions claiming easements, etc., SS. ;w, ,'i'.t. Disabilities in <'ases of, ss. 4oi2. Disabilities and exceptions : Easements, ss. 40-42. Time during which a party under disability not to pk counted. s. 40. Term of years exiluded in com- puting TIME IN CERTAIN CASKS, s. 41. Exception as to lands ok the (,'rown, s. 42. In cases of land or rent, ss. 43-4.'). Five years allowed from the termination of disability, s. 43. Twenty years the ut.M08T allow- ance, s. 44. No kurther time kor a succes- sion OF disabilities, 8. 45. ^» :\ryl HEAL I'RoPEitry statutes. [M. A. 0. VI .■ i. : '4 , t ■■ deemed to have taken CommeiicH- etfect, and chapter HH of tht^ Omsolidated Statutes of Up|mr "u-ntof Act. Canada, and section 22 of the Act passtnl in the tiiirty -second _ • ,|?'_ ,!;,'-i; ' y.ar t>f Her Majesty's reign, and chaptered 7, to have been ^ - J, oo reiJf'ftlt'd, on and after the first day of .July in the year of our Lord lf*77, as respects any person who on and for twelve months cimtinuouHly after the twenty-first day of Decemln'r, 1874, nsiiiid without this Province, and is a j)erson entitled to make an entry or distress or to bring an action to recover any land or rent ; nr so resident, is a mortgagor, or i)erson entitled to redeem witliin the meaning of secticms 10, 20 or 21 of this Act ; or so ri'siilint is a person entitled to, or claiming nnder a mortgage within the meannig of section 22 ; or so resident is a jH-rson • ntitled to bring an action, or other proceeding within the iiifaning of section 23 ; or so resident is a jierson entitled to an action or otiier jiroceeding within the meaning of sectiim 21 ; or s.) resident is a perscm claiming an estate, interest or right, to tike effect after or in defeasance of an estate tail within the lueaninff of section 29 ; or so resident is a person entitled to (li'iiirtiid dower; and except as resjiects the persons, and in the cases, luentioned above in this section, this Act shall !>;• deeiiie 1 til have commenced and taken effect, and the said Acts to h»ve Iten reiM>aled from and after the first day of July, 187(5. R. S. O. is:7, e. 108, s. X 1st of July, 1877, is the cLate lixed by 38 V. c. IG for the coniinencoment (as respects the persons here enumerated) y action to ricovtT any land or rent, hut witliin ten yearn next aftiT the time at wliich the ri^lit to make hucIi I'ntry nr ili^trtai or to hrinff hucIi uutioa, tiritt ticcriiccl to Honitt jH'rsnn tliniuj^h whom hf claimH ; dv if sucli rJKlit (lid not accnu' to :iny i»r«uii tlirou^li wlioiii ho clainiH, tiioii within tt'n years next after the time at which tlu) right to niaki^ suoli i-ntry or ilistrts*, ur to t)rinjr Hiich action, first accrut'd tt» liu' pfrson inakin(,' or lirin«'iii(r tlw same. K. S. O. 1877, c. 108, s*. 4, 21>. No land or rent to l)n rt'covcrt'd hilt witiiiii t«'n yrarH after tho riKtit of action ivocriu'd. Tnip. ;t-» Wni IV. c. 27, "• - ; 3788 V. c. 57, H. 1. " Pcvfioii" : — "The word 'person' .shall include any body corporate or politic or party, and the heirs, e.\eciitors, administrators, ov other iej^al repre.sentatives ol" such person, to whom the context can aj)ply according' to kw"(i). Action hroiujht ; nt iv/uit point currency interruptiil : — " We have already intimated our opinion that the com- mencement of the suit prevents the operation of the statute. But it was contended that the great delay i" 8uin (1734); .South Si-a Co. v. Wyniondsell, 3 P. \V. 14;i (17;t:') ; .i* to charities, hffor<'3&4 Wni. IV., Attv.-CJcn. v. Mayor of Coventry, ;< Mwl^ ;V)8 (1818) ; an to charities, after 3 & 4 \Vni. IV., and as to an unotrtain ur fluctuatinpr class, Magdalen College v. Atty.-lJen. (> H. L. C. 2i'7 (1H5S); as to trustee in bankruptcy, ifcMansell, ex p. Ntirton (181t2), W. N. 32. U) Turley v. Williamson, 15 U. C. C. P. 541 (18Gu). See hue AuKiiidav. Minthorne, 3'U. C. R. (1847). (Hti.lll.J n'JIAT Aim ACTIONS WITHIN STATUTE/ a.")0 of ble, ;rtte ftfr the ,n, Mt to lie iUiy ,1" sucli iilin;^ to |\h' coiu- o£ til'.' ilolay in lln NV'Wt Nvas tlie Ivit. ^^'« l'riii'riHii;i n inlrr Qu it'tlnij Titles Ai'f : — A pn)Cei'uit is an action for the recovery of land. This bein^ so, it follows n fortiori that a redemption suit is also an action lor the recovery of land " (/•). 5. In tin- construction of this Act, the riffht to make an AVhi'n tin- Hiitrv iir (iistrcxs, or bring an action to recover any hvnd or rent, J'lk'ljt sliiill ^!ll»ll In- (liiintil to have first accrued at such time as iiereinafter ^^^ ]ui\,- Hrst I'' uifiitiuned ; acfrucd. ik) Lainp v. Avery, 14 Gr. Xi (18G7). i/l K.iu'iiM.ii. J., in Fletcher v. R.Klden, 1 O. R. 1(>L' flSS2), eitinf H-ath I'ii!.'li, t;(,t. H. I). ;<45 : Wrixon v. Vize, ;{ Dr. & War. 104 ; and lliulo, U v. A-huiry. \V. X. 18 Fei). 1882, lil Cliy. D. Ki'X »<• IJarwick v. Harwich. 21 '■r. :W(l,x74). S,r HuKill v. WilkinHoii," 98 Ch. I). 4,S0(1888), foreclosure action 'iiaii eiiuitable charge on a contingent reversionary interest. M Burton, .T.A., in Faulds v. HariHir, 9 A. li. .">50 (18S4). (") « U. C. L. J. 42. ( ) 17 Ch. 1). 107. (/H7Ch. I). 132. (7) ■ App. Cas. 235. ('•) Strong, .J., in Faulds v. Harper, 11 S. C. R. 055(188(1). I ' » i ■' f * ■ * \\:a\ REAL PllOPKRTY STATUTES. [R. S. 0. On il;-"- liiili. Act, 3-4 Will. IV. c. lT, (1) Where tlie iii-rson claiming such land or n-nt, nr sc^m.. perxun through whom he cliiims, has, in reciH-ct of tln' cstat ■ interest elaimetl, Ih-cu in ixmsession or in the receipt of tln' profits of sncli lan(l, or in receipt of .such rent, and has, while .-. ■'. entitled thereto lieeu dispo.s.sessed, or has discontiniiMl mui, ]M)ssession or receipt, then such right shall 1k' dfcuieil tu iian- first accrued iit the time of such dispossc'ssioii or discniitiniiain'. of possession, or at tiie last time at which any --ucli pi'iitits.i rent were or was .so received. Poiisr.9filon of dl(tfproi)ei'f;/,iuiiHf }>i' .vi,i (IS jiropcrti) is capdhle of: — " The term ' pos-sossion ' has ik. definite meaninjjf. Erie, J., in Sld'enfioi) v. Xcii'iiIkiii,. 17 Jar. (100, said, ' Po.sscssion has a hundred ditierent meaii- iii<.ifs'; and there can he no doul»t that that is so. Then ma}' he mere naked possession, as that of a wroiiL^doeroi' finder; or that po.sse.ssion whieli property* or the ri^ht c! property draws to it, and wl'ich is available to the owii'-' while he maybe miles away from his property: nr tlm- pos.session whicli in law one was deemed to have wlun seisin was delivered of one parcel in the name of it aiiilali the other parcels which lay in the .same countiy: or th.r possession which passes without entry under a huriiuiu aiK sale ; or that possession which the owner of the soil of ■■> highway may still have in the soil, though he has paitr . with the easement of travel upon it, and though he iii;. never enter on it himself : or where no dedication has lnv; made of the highway, but travel is pennitted upon it ' ; sufierance of the owner, who preserves his entire inten- in the soil, and his control over the use of it for tnivel. '; yearly putting up a bar, or doing some other act in comn vention of the public right and as evidence of his own. that possession which the landlord has by iiis tenant, ti, l)ailor by the bailee, the trustee by the ccstiil que frn^' the master by the sei'vant. There is the possession al>"'' the sheriff who levies, or of the bailifF who distrains: ti ])ossession of shares in an incorporated company: ti: possession of water or gas pi])es laid in the soil of aniith'i the possession of different incorporeal hereditaments ai'j mat "I'l" liaii victual Klph «ilclV II.;.-,,, "tr,,a,| V. (lil.l n. ('.,, '•!;■. ,s "/ >. I'arr ■staiili-v '.'■ ri!i, ■"'"lirii, '"'■. mil Cap. Ill-] WHAT IS J'oiii>£StiIoy/ .)0< iiuTt* oasenieiits ; mid the possession of a voti' or of ;ui orticf : itntl many othir kinds of possession, which niij^dit be multiplied, and which ditl'er from each other in kind, in chaificter, and in dej^ree, and which in no sense bear that iiic.ininLi' of possession whicii is po[)ularly or loosi'ly jittaclifil t(j the expression. Tiiere is possession of the wiitcli which one carries, of the house he lives in, of the tieltl lie works, of the wild land attached to his lot, and of the vacant lot which he may have in a ditJerent townshii). The possession of these properties is ditterent in kind. But if the possession which is had of them be such a possession which tliey are respectively capable of, and such ;i possession which people <;enerally have of them, tlu-n the possession which the person has of the vacant lot, from which he is distant, is just as good a possessi(.»n in law as that which he has of the watch on his person " {k). With so many different meaninj^s of possession, it is not surprising' that we should iiave a considerable diversity of (i[iiiiioii in decided cases as to what constitutes possessitm. Nor is this diversity made less by the ditl'erent deyrees of leiiieiiey with which ditterent Judoesure prone to rei;ard the man whosetsup the " pai'lianientary title " Ijy possession, in Mppositiiiu to tlu' paper title of another. Thus, on the one haml. We timl Wilson, C.r, saviny-: — "The actual si'ttler .^1 k ii * ■i-'^l (>i Wilsnii, CI., ill Davis v. H.'iid<'rs.,n, 2'.t V. C. K. HV! (IsH'M- Kor further cases as til what 111 partUMhir Uiiuls nf prupiTtv I'Mii^titutcs actiiiil |)'i>sc-siim : Sir Mrisluw v. C'urinicraii, i< ■^\<]> <^as. fill (ISTsil. < 'lark v. K'ii4an>tnii,'. (i. ,Vi,|). fjis. 1()4(1S.S(I), |i,ncs v. Willianis. •_' .M. .V W. Iti'i; (ls37), wjicif |iii>scssi(iii i)f parr is pii.,'ra\cl pit ; Tottfiiliaiii v. Uryiif, 1'-' Ir. ( '. L. 1!. .H7'>, |«"-sc^sinii "irnaii liv Imihliii^'wall; NVnrsaiii V. Vaii(li'iihraiiil''.17 W. \i. '>'■', tViio-; rhillipsi.ii >.iiil'l»>ii, I,. K. t; (.'h. »'JS(1S71). iMisK'ssiuiK.f wall ; Norton v. liinidim.V X. \V. It. <',,. i;< Ch. 1). 2(iS .(|H7'.l|, Scarl.y v. Tntt.'iiliam. I,. I{. ."> K.]. ■Jn'.i (1S(1.><), [..SM'ssicii ,,f hi'il;,'!' or iliti'li ; Haiiis v. MuNton, 14 Cli. 1 ». .">.t7 uinkT- crniiM.I (vllar : llohlictt v. S. ]•]. Ky. !M.^. ]\. I ». I-Jl (Is.s-J), Nortcii v. LoikIoii, <-ti'. .<((/. )w, laiiil of railway ooiiipaiiv ; Kifii v. .Ioliii-.oii, .Str. 1 ! I'_', iniiii-^: 'I'avlor V. rarry, 1 .M. & (ir. (i(i4, Wild v. Holt, '.» .M. X W. »;7l.'. r,..w Moor L\>. v. Stanli'v Coal Co., :i4 L. T. tSii, part of iiiiiif for wholi' ; .\shtoii v. .'Stis'k. H Cti. 1'. 7l;', adioiiiiii^r iiiiii.-s; Keys*. V. I'ow.dl. 2 Kll. \- HI. IIVJ. S.diloii v. •■'iiiitli, :><; !,. T. Hi*', inini.rals ac(pmvd with >iirfa<'" : Sianiaii v. Vawdi-fV. Itl V;-. :!:|o, .MuDoiiii.'ll V. MoKinty, 10 Ir. L. K. r.L4. .Smith v. I.loyd, •» Kxcii. ii'i'.', minerals not so accpiired. W^f il 358 JiEAL PROPERTY STATUTES. [R.S.O. ':i 15 S who has occupied and cultivated for [twenty] years has, by our Legislature, a stronger moral claim to the land he has lived on for [twenty] years, than the holder of the paper title has, who lias so long neglected or abandoned it " (t). While, on the other hand, we have Rose, J., saying, in Western Limn Co. v, Garrimn (u), that, " where a party conies before the Court as a mere trespasser, or occupyinn- land without any moral claim, in other words, as a thief stealing land, every energy is bent to prevent hitn ac(|uir- ing title." In view of such (liversit}^ in the nature of possession and in the opinions relating thereto, it will be advisable to first lay down some general rule as to what constitutes possession within the meaning of the statute, and then more particularly to examine into what acts c'(tnstitut> possession in reference to difi'erent persons and properties The general rule we may find in the decision of Gwynne, J., in tiie following paragraph. Tlif /'ONwWoj? that havf^ title and the posspss'ion tlmt tjirei^ it: — " Now, by a long unltroken chain of decision- e.xtending over a period of u))vvards of 40 years, it has been held by the courts in Upper Cin\')]: and that to transfer the title to the person in pos- session at the cxpirntion of the [20 years] such pei"sor. must claim piivity with the persons preceding him in the possession during the period of [20 j'eai-s], unless he him- self was continuously in such possession during thatperiivi The difference being that while any person in possession, (0 Davis V. Henderson, 2i) U, C. R. 35<'. (1809). (H) 10 O. R. 82(1888). (i) Read ten j'Ptirs now, for twenty. tv,..in.] PniVITY OF SUCCESSIVE OCCUPIERS. 359 after the title of the true owner is barred by a possession to liis exclusion for ,20 years] .aay defend successfully an action of ejectment brought by the original owner, how- ever short may have been the possession of such defendant, ami notwithstanding Ins want of privity with the persons in possession during the [20 j'ears], yet no one can recover an jdaintltf' in ejectment in virtue of a title acquired by possession against the true own^r for [20 years] under the provisions of the statute, unless he hiniself alone or in pi'ii'ifii with others in possession before him had that iitiimous possession which was required to bar the true owner : and payment of taxes or the committing of acta of tresimss, I)}' cutting timber from time to time, by a persnii not in actual visible possessicm, will, avail nothing tuwai U' I'stablishing the possession which the statute requires (it')- Pr'n'itj/ of title hcfween sitccrs.n>'e ocnipirrf> need not Jenced by deed : — "There is no doubt that a possessory title, that might l)y lapse of time become perfected under the statute, may bo the subject of sale or devise: Aslwr v. ]V hit lock, L. R. 1 Q. B. 1. And upon the sale to D., H. gave up the possession and 1). took it. 1). then luul a right to call for a legal transfer, and might have obtained it by a suit for specific perl'ormanC(>. His eijuit- al'le title was perfect. And it has heen decided in T/ntrne V. W'lflidiDn, 18 (). R. 577, that an action for i-ecovery of land may be brought upon an equitable title "(.'•)• ■M: M P,r Owynii, J., in McCouaKliy v. Dcniiiiirk, 4 S. C. R. f.3.T (18H0) ; citintr Mor^raii v. Siiii]>vii)n, .'> (). S. ;W.\ hm' Tiivhir v. Scxtim, 8 U. C. R. 2fi(); AlliM.i, V. K.mIhov. M r. <'. K. 4(12 ; A» Lloy.'l v. H.-ndfi'son. -'5 U. C. C. P. '.'.■iti (IHT.")). tluTi' must he iiu-ist'r(si()ii by iviiotlifr ; Hdi- Ciirtcr v. Bernard, lU^'. 15. m.'i (is4'.»), iMisMt'ssioii of wife fullnwiiijf tliiit of IhisImuuI ; Canada C.I. Company v. Douglas '_': U. O. C. P. 'M3 : Cl.Mn.Mits v. .Miirtm, 21 V. C. C. v. TilJ;' ]),„■ MoDc.n.ll V. Rattiav. 7 V. C. R. 321; Dor Hlu-pherd V. Ikyl.y, 1(1 I'. (1 H. 320. Yoiintr v. Klliott. 23 U. C. R. 424, Dor (loody v. furtir. !i (I \\. ,s(;3 ; Dor Cuthbertson v. Mc<;illis, 2 U. C.C. P. 124-i50 ; Kaiulall V. Stt-veiiN, 2 Kl. & P. (J41 ; see also Walton v. WiHKistoek (Jns Light CVi., 1 0. R, ().'t() (1SS2). >'('•' also noti's uiidtT .section l."» iiipra. (/) I'roudfoot, J., in Siinmonw v. Shipnian, 1.5 O. R. 301 (1888). PI 'II 360 JtEAL PROPE/tTY STATUTES. [R. S. 0. 4 Poaaession claimed by ivhat ckisses of persons! We shall find in a great many of our Canadian cases three classes of peraons claiuung; possession (whether to stop the currency of the statute or to set it running) ; the resptjciive rights of which classes it is necessaiy to carefully dis- tinguish : — (1) The rightful owner i.e. the person having a perfect paper title ; (2) The claimant who enters believing himself possessed of a perfect paper title which subsequently turns out to be defective {y) \ and who though in some sense a trespasser (2), when he entered, was not a mere trespasser. (3) The squatter or mere trespasser, who enters with- out right or color of right («). The failure to carefully follow out the results that arise from the proper distinction of tlie second and third classes, is accountable for whatever confusion or apparent conflict exists in our decisions, touching such claimants. Of the right of the first and second classes the most conspicuous feature is that embodied in the doctrine of constructive possession. Doctrine of constructive possession : — " In order tliat the statute may operate against the owners out of possession, actual possession in fact in another is essential, in order that the rule of law which attributes a possession actually vacant to the peraon who has tiie legal title may be rendered inapplicable " (/>). In Weld v. Scott u ), Robinson, C.J., speaking of the position of a more tres- passer says : — " The distinction between such an occupant and another, who either shows a right to the whole laul (1/) .SVc Dttvis V. HenrU-mm, 2'.t U. C. R. ;i.ir,, 3(10 (18C!l). (?) See Young v. Elliott, •_'.") ''. C. R. 331 (18(if)). (n) Davia v. Hendewcjii, .v»/.m, (b) Gray v. Richfurd, 2 S. C. R 45.) (ISTH). (<•) 12 IT. C. R. 537 (ISm). ■ i if tM El' ' ''' 362 li/iAL PltOl'EltTY STATUTES. [R. S. 0. n UK IT, ■"is 1 L ■ " i 4 *i ' V-' The objects of these statutes were altogether different. Tlie policy was, in the interest of the community, not to allow a possession to be <[uestioned after it has been enjoyed for such a length of time as rendered it unreason- able in the eye of the law to re(]uire evidence aliunde that it was holden under a title derived from some other and sufficient source, when such evidence by reason of the lapse of time might not be easily attainable. It never could have been the intention of the Legislature to encourntTe persons wrongfully to enter on the land of others, although from the frame of the enactment it sometimes operates to protect a possession under a bad title, or no title at all ; but such operation is, I apprehend, a consequence of the enactment, and not an object of it "(/) Mere trespasser confined to his pedal j>os8ession : — "We think to allow the plaintiff to recover on the evidence that was given would be contrary to the legal principal co'.istantly upheld and frequently made the ground of decision in this court, that a person wrongfully in posses- sion of any land belonging to another, which is not covered b}' any title under which he can assume to hold it, gains no right under such possession to more than the land which his actual possession covers. He is coiitinetl to what has been called his pedal po.ssessiou : and even occasional acts of trespass committed by him on other parts of the property will not l»e takni as extending his actual peaceable possession ovor such parts "(//). " The original taking of possession being wrcMiijful ami without color of right, how can the plaintiff be deprivoil of more than the detendants have actually cultivattil or enclosed ? There can in such a case be no constructive (/) Per Burton, J. A., in Harris v. Mudie, 7 A. R. 421 (1SSl>) eitiuR />or Sheuherd v. B.aviey, 10 I'. C. R. MS ; D» Hnukett v. Niglitingiklf, •'> V. C. K. 518; Kdmiinds V. \Vaugli, L. R. 1 Eq. 421. ('j) Robinson, C.J.. in Weld v. Scott, 12 U. C. R. 5;<7 (1855). Cap. 111.] W'llKltK POSSIISSIOX XOT KXVLVSIVK. 363 no-iscsslon ; fi»r the constructive posae.s.siou is in the person luiviii<,' the legal title, both cannot be in constructive possi'ssion of the same land. " The doctrine of constructive possession can ol)viously have no application to the case of i trespasser, and it could lint be carried out without becoming involved in serious -litficuities and absurdities "(/')• " No man is to lose his land by the constructive posses- sion of another : the possession should be actual and to the exclusion of tlie true owner. The evidence to support siicii a nece.ssxry possession may be valid in degree. The best and most significant evidence would be, of course, tl.o enclosure of the land claimed, and juries should be Ccuefully warned not to accept occasional acts of trespass as a continuous possession (if)." "Harris v. Miulie 7 A. R. 414, was referred to us in etiect ovei-ruling Steers v. Slanv, but I do not think the cases at all inconsistent. Harris v. Mndie was the case of mere tri'spassers «;ntering wrongfully ami without colour of riglit. while this cnso, as also Steers v. S/iair, 1 O. H. 20, is the cast' of occupation in the honest buliof of the ])laintiti tii.it he was tiie owner, and for more than ten years a[)pa- iviitlv in the honest belief .... of the owner of the U'lioining lot that this was the true dividing line between ti,.-in (j). MIk re ]h>ssession is not exclusive, in ivhose favour is '' '— The result of the cases seems to be that where several pei-sons are in occupation, the statute will not run in favour of one against tiie others ; but the possession will be dceined that of the rightful owner. " I take it to be a well rstab- (h) Hanis v. Miulie, 7 A. R. 420 (ISSL'), per liurtim. .T. A. (/) Stpcr^* V. Sluuv, 1 (). R. .S2 (1SS2). i>fr lliijjtrartv. C..I., pf. Wult<>n v. Vv .Klst.K."k (i-A* Liglit Co., 1 (.). R. t>37 (IH82). followiiiff Smith v. Lloyd, '' Kx. ,")IJ2. I;) Mc(;roKor v. Ktill.T, (). R. (JSl (188.1). Sw al.-o RoU'rtson v. Daley, 1' o. K. 3r)2(].S8ii); Arnold v. Cumne'-, 15 O. R. ;W2 (ISsS). \ h 364 REAL PROPERTY STATUTES, [R. S. u. ? 4 lished principle of law that if two parties are in possession of a lot of land, one having title to it and the other without title, the possession will enure for the benefit of the one having title "(/.:). Thus in McArthar v. McArthur (I), Robinson, C.J., says; — "But clearly the defendants have no I'ight: they were not both or either of them in exclusive possession, but were living with their mother as members of her family. They did not become disseisors by merely coming of age : and the statute ran no more in their favour at one time tlian another, so long as their mother was in possession as head of the family, nor at all more than it would have done in favour of any other relation, or a farm-servant who had remained the same length of time upon the place." Nor will the statute run against a person who though living upon the premises is nevertheless incapable of taking the active management of the same, and is maintained by the other occupant or occupants. Thus in the same case of McArfkwr v. McArthur the Chief Justice said: "It signified nothing that the mother was for seven years incap- able from age of taking the active management of the farm, and that her son P. may have chiefly managed it for her. " If the law were so absurd as to look upon a son so situated as in possession to the exclusion of his mother, it would make it necessary for the widow to turn all her sons and daughtei's out of the house "(m). Nor does it matter that the person so maintained In' the other occupants, does not affect to own or have any interest in the property (n). (A) Ritchie, C.J., in (Jray v. Richford, 2 .S. C. R. 442 (1878). (I) 14 U. C. R. 544 (1857) ; cf. Foley v. Foley, 20 Gr. 403 (187!t). (»i) lb. sxt IK 645. .See also White v. Hiiiffht, 11 dr. 420 (1805) ; Orr v On. 31 U. C. R. 13 (1871) ; McKinnon v. McUonaUl, 11 Gr. 432. in) Holmes v. Holmes, 17 Gr. 010 (1870), citing Doe Groves v. Groves, 1" Ci. B. 480. Cap. 111.] PA YMENT OF TAXES NOT POSSESSION. 365 On the other liaml where the heir-at-law being in the active management of tlie property conveyed to a hova fnle mortgagee and thu title by which the widow claimed was iindur an unregistered will, it was held that the widow's heirs could not set up her posse.ssion as against such a homi Jidc mortgagee or purchaser (o). Piii/ment of to.res not conclimive evidence of pot^Hesnion : — The cases in our Canadian Courts shew the e(|uivocal nature of the payment of taxes as evidence of possession. Thus in an early case of Doe, Pemj v. Henderson (p), we tind the Court saying : " Something was said in the argu- ment on the ett'ect of Robert R. Perry having paid the taxes bv his father's direction ; but that couM bo of no cH'ect, un- less it might seein to place him in the situation of a mere agent of his father, and give that character to his occupa- tion. It is clear, however, that he was in fact occupying for his own benefit, not as the servant or agent of his father; and his paying the taxes under such circumstances is no more than what he ought to have done without am- such direction. The tenant or occupant is prlmo focii liable to taxes; and there was no evidence that he was advancing them for his father, to be repaid as an agent would be. If his father had made him a deed in bSIS, he must have paid the taxes ; and the insisting upon it that he should do so, is a confirmation, so far as it goes, that his father threw upon him the liabilities of owner of tin- property." More stress was given to the payment of taxes in a later case of Davis v. Henderson (7), where Morrison, J., says : " I notice the remark that the paying of taxes signi- fies nothing (r). With the greatest respect for the opinion {'>) .Stoplums V. Simpson, 15 Gr. 6!)4 (18fi!)). (;*) 3ir. C. R. .500(1817). (7) 29 U. C. R. 359 (1869). (r) Made by Robinson, C..T., in Doc McDonell v. Rattray, 7 U. C. II. lUtj \ ^ "lin i I 8(JG Itb'AL I'HOPKHTY STATUTKii. [K. s. 0. if' P. 4%: A?, ■:6i--\ 1;;! it' of that very able jiulLje, I think it is an important fact. If a party is assessed and pays taxes for the v.diole lot for thy period in »|uestion, and while he is in occupation or livin"' n\\ the lot, it not only indicates that lie claims the ri^^ht of property and possession, but the act itself is done with a view and in order to preserve his riyht, property, and possession in the whole lot, and to prevent its beinj,' for- feited. It is, I think, some evidence of a continued asser- tion of his ri<;ht of property in and possession of the whole lot or such portion of it as he is assessed for. On the other liand, we cannot shut our eyes to the fact, that were it not for this very act of ownei-ship on the part of the occupier, the title and riy;ht of the party who has slept on his rights would irrespective of the (jue.stion of possession, have been totally extinguished long prior to the end of the [twenty] years. ' In Re Jar vis v. Cook (s), Spragge, C, said : " There ha.s been no such possession by the vendor as would hi a possession under the Statute of Limitations, for such period as would extinguish the right of any one. There has been a payment of taxes for over ten yeara, but that has never been adjudged to be sufficient. In McDonell v. Rattray (0, Sir John Robertson said : ' The paying of taxes signifies nothing.' Mr. Justice Morrison, in Davifi v. Henderson (u) (juestioned this ; and thought it an important fact." In Scale v. Johnston the equivocal nature of paying taxes and als(» of making repairs is shown. For in that case one B. being in undisturbed possession did those acts as well as cultivated the soil, and it was set up that he had agreed with the owner to pay taxes and keep the place in repair (v). (») 29 (Jr. 30(i (1S81). (0 7 U. C. R. 32(i. («) 29 U. C. R. 359 (18«9). (v) 13 A. R. 349 (1886) ; the Court, however, did not consider the agrcf- inent sufficiently established to take the case out of the statute ; which, Iimw- ever, does not affect the possibility that such an agreement might in .any case exist. See further Walton v. Woodstock Gas Light Co., 1 O. R. 630 (IS.'*:'). See 16 A. R. 484. wmg that acts haJ Lee in agree- nv ciii»e I (I8b2). Cap. Ill] UOUNDAllIUS -THEIR SlUNlFlCANCE. 3ti7 The upsiiot of the inuttor .soeins to bu that ))uyiiient of taxes is some cvitluuce, but alone is not milficient evidence of pdSHcssion. 'D(x s((le ; w/ien (foen time hnjhi to ran : — While coii- siiK'vin;.;' tiie Hubject of taxes it may not be inapproiuiatc to ndil the following note : " The .statute did not coninienee to run froMi the date of the tax sale, and durini;- the pendency of the certificate of sale ; but only from the time when the 1 i<,'ht of redemption ceased " (iv). (h'capani under deed or wdl cannot m't »/) sftitutf : — A party is not permitted to continue in possession under a deed or a will and afterwards say that he aeiiuired the property by a possessory title {x). Onax and coda of proviivj poi^scsKloii : — There is a tendency in the courts to throw the costs of provin;^ a title hy possession on the party claiming the same. Thus in a case under the Quietinj^ Titles Act, Vankou<,dinet, C, said : "The rijfhtful owner of the title, which the petiticmer or claimant seeks to shut out and extin;^uish by wrono;Ful pos- session, may fairly call upon him to establish this. The rightful owner is not to hunt up evidence for the purpose. He carmot tell upon what evidence his adversary may rely to make out such a case, and I do not think he should l»e maile to pay that adversary's costs, even though the latter establish his case "{y). Boandariefi ; their aignificdnce in relation to the statute : — A needlessly large number of cases appear to have arisen on the application of the statute to cases where, owing to erroi-s in survej'S, adjoining ownei-s were occu- pying up to an erroneous boundary line. The confusion («•) Boyd, C., in Smith v. Midland R. W. Co., 4 O. R. 40S (1SS4). (x) Gray v. Ricliford, 2 S. C. R. 400 (1878), citinjr Hawkslicp v. HawksV.,?e, U Hare 230 ; Austee v. Nelins, 1 H. & N. 225 ; Persse v. Persse, 2 Ir. Cli.iu. K. l!i() ; Keringhan v. McNellv, 12 Ir. Chan. R. 89 ; Morton v. Wootls, L. R. i^l B. 2!)3 ; Archibald v. Scully, 9 H. L. C. 384. _ (.'/) Low V. Morrison, 14 (ir. 199 (18(58). See PooIpV. Griffith, 5 Ir. C. L. R. 277, aH to onus of pnwf of commencement of wrongful po-ssession. 1 n I ll»f 11 V h\i til * 11 ■ ' -^'M Ma J? ■if h > I' . IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 1112 m m m m III— U ill 1.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 i .<■' WJ- '^y M.^ &>/ C/j i 868 REAL PROPERTY STATUTES. [R.S.O. t ;■ arose through a supposition that the Survey Act, wliich provided for establishing^ the true boundarj'-, interfered with the operation of the Statute of Limitations. That such was not the case, we learn from Taylor v. Croft {z) where Wilson, J., saj^s ; — "I think the statute {i.p., the Survey Act) does fix the true division lines between the different lots, but notwithstanding that the possession of the parties, which has grown into a title, is not at all affected or defeated by the statute. . . . On this grouml, I am of opinion the plaintiff is entitled to maintain his boundary against the tr.io actual and fixed boundary line." Such being the case ,.n question of the true and false boundaries pi'esents r.'? especial difficulty in connection with the statuco, Boundaries^ : will em ■. .-/?./s line of fence he extended! — " The general principle I take to be that what a man suffers himself to be actually dispossessed of and excluded from for [twenty] years, he has lost (a) ; but that he is not to be barred of his right by the Statute of Limitations, in land of which he is tlie true owner, by any mere con- structive possession, resting on an ideal enlargement of a trespass beyond its actual scope " (6). Nor even if the parties agree to a division line after- wards found to be erroneous, will the possession of a portion, during the statutory period, give a right to the whole, by constructive possession, as if the erroneous line (;) 30 U. C. R. 570 (1871). See Bernard v. Gibson, 21 Gr. 105 (18741; Palmer v. Thornbeok, ?8 U. C. C. P. 117 (1877) ; McCracken v. Wanuick, 43 U. C. R. 214 (1878). (a) See Doe Stewart v. Radick, Tay. 494 (1827) ; Doe Dunlop v. Servos, 5 U. C. R. 518 (18 19). Kven though there be a mutual error as to the boundary, and no intention on the part of the occupant of obtaining more than the lut covered by the deed, tlie title will accrue. Doe Taylor v. Sexton, 8 U. C. K. 2G4 (1851) ; Martin v. Weld, 19 U. C. R. 631 (1860). (i) Robinson, C..T., in Doe Beckect v. Nightingale, 5 U. C. R. 518(18491. See also Denison v. Chew, 5 O. S. 161 (183(5) ; Bell v. Howard, 6 U. C. C. P 292 (1857) ; Doe Hill v. Sander, 1 U. C. R. 3 (1844) ; Wideman v. Bruel, , U. C. C. P. 134 (1858). « -^i I'm L.S.O. vhich rfered That oft iz), p., the ■en the jion of at all rrvound, tain his vy line." nd false nnection tt a vnan excluded he is not :ations, in Ineve con- ;incnt of a line after- Ision of a rlit to the neons line ir. W5 (^*'^l; ,pv. Setwa,;) the boundary, Ve than the lot ion,8U.C.R. Ian V. Brue\,> Cap. 111.] POSSESSION OF WILD LANDS. 369 \vere further produced (c). On the other hand, we must remember that it is not essential that there be any fence at all, to constitute possession (d) ; but merely that where a fence line is relied on, it must be an actual operative boundary, not an ideal production of one. Possession of wild lands : — The chief difficulty in tue application of rules as to possession has, hitherto in Upper Canada, been with reference to wild lands (e), and lands partly cleared, partly uncleared, partly enclosed, partly unenclosed. While the decisions above cited render it manifest that a person in the 1st or 2nd classes enumer- ated may be in possession of a greater portion of land (wild or otherwise) than he is actually occupying, yet dida are not wanting which render it difficult to define what is covered by the possession of a squatter or mere trespasser. Following Coke's favourite maxim quod satius est petere fontes, qiiani sectari rividos, we may better refer to cases where the source of the difficulty plainly appears. Thus in Dundas v. Johnston (/), Draper, C.J., says: "Land is generally divided by the Government surveyors into uniform lots (g) in each township, except where the irregular formation of the ground owing to lake or I'iver frontage or other causes renders this impos- sible, and then there are broken lots. The grants from the Crown are also very frequently for less than the lots as surveyed ; sometimes, as in the present case, for a half lot, sometimes for a quarter lot ; and sometimes a certain number of acres, part of a lot, is granted. {, ) Ferrier v. Moodie, 12 U. C. R. 379 (1854). id) Sec Elliott V. Bulmor, 27 U. C. C. P. 221 (1870). (f) "The i)08session of wild lands will ordinarily be constructivo only, fnll(nvin(» the lepal title"; per Patterson, .T.A., in Van Velsor v. HughHon, II A. H. 407 (188-'). Cf. Harris v. Mudie, 7 A. R. 421 (1882) ; Steers v. Shaw, 10. K. ;« (1882) ; Walton v. Woodstock Givs Light Co., 1 O. R. 030 (1882) ; .McGregor v. Keiller, 9 O. R. 081 (1883). (/) 24 U. C. R. 549 (1805). (.'/) Usuully 100 or 200 acre lots in the early days. HI1.I>.H._24 ^ !^ 'i ! i. !• i 370 JiEAL PROPERTY STATUTES. [R. S. 0. " As a rule these grants are of land in the natural state, not cleared or improved ; at least such is generally the assumed condition when the Crown first agrees to dispose of it to individuals. Even when the grants were preceded by mere locations, subject to the performance of settlement duties, it is notorious that these duties wei'e oftentimes not made at all, or made in a very perfunctory maimer, and no part of the land was in fact either cleared, fenced or settleil upon, and, notwithstanding the previous C(jn(lition to perform such duties, the grantee had not, in the language of the 3rd section of Consol Stat. U. C. c. 88, ' taken aetuul possession by residing upon or cultivating some portion thereof.' "When, therefore, a person without any title, or vlthoiit any real or bona fide claim of title (though erroneous) entered upon any such lot, clearing and fencing only a portion thereof, I do not understand upon what principle this wrongdoer can be deemed to liave been taken and to be in possession of the whole of such lot, — for example of 200 acres, if the lot was originally surveyed to contain that quantity, or of the half or quarter lot, if such had been the division by the original survey ; or that his cultivation and fencing of a small part puts him into possession of as much (be it the whole or the fractional part of a lot) as the proprietor of the part trespassed upon owns." A similar difficulty is raised in Loiv v. Morrison ih), where Vankoughnet, C, says : " The erection of a mill on the corner of a wild lot of land would hot be a possession of the whole lot. Many a man, as a squatter or under a pretense of right has availed himself of the advantages which a stream of water aftbrls for driving machinery, and erected a mill there and worked it. But it does not follow from this that he is thereby in possession of the adjacent 200 or 400 acres so as to give a title to them, (A) 14 Gr. 195 (1803). ,* m^% ,,..f**» Cai>.lll.] POSSb'SSION OF MERE TRE-SPASSEIi. 3T1 adverse to the true title. On which side of the mill, for instance, is the vacant wild land to be considered as in his possession ? Is he to be treated as occupying 200 acres in front or in rear, or both, j^iving him 400 acres in all ? " The difficulty then is, to refer the possession of the squatter on wild lands to any definite quantity of land other than that actually occupied by him ; and for cases where this difficulty arises we have the rule restricting the niei-e trespasser to the land of which he has " pedal posses- sion." As expressed by Haggarty, C.J. : " Where a person eutei's on part of a wild lot, claiming no title and not affecting to exercise ownership over any specific portion of it building a house and clearing a portion which he after- wards increases, I see little difficulty in rigidly restricting his title by [twenty] years possession to the part actually occupied for such a period" (i). When mere trespasfter actwdly occupying a portion riuoj claim wlwle lot: — There are cases where a mere trespasser, though actually occupying only a poi'tion of the whole lot may nevertheless claim the whole. Thus, in Da\m v. Henderson, we find Wilson, C.J., saying : — " If the rightful owner enter upon any part of it, he enters in law upon the whole of it. If, after such entry, another forcibly turns him off and keeps him oflf for [twenty] years, and durinsjf all that time the wrongdoer lives on the land, and cultivates as much of it as he requires, but leaves the half oi it in a state of nature, is not this intrusion evidence, without more, of a disseising of the whole lot ? " So, if another, believing he has rightful title, enters on a lot, claiming to be the owner of it all, lives thei'e for [twenty] years, and clears a part of the land, leaving the rest of it as wild land, is not this, without more, evidence of possession of the whole lot, the wild as well as the cleared ,, (f) Hpyland v. Scntt. 19 U. C. C. P. 170 (1869). Cf. Robertson v. Daley, 11 0. H. 352 (188G). I h 372 REAL PROPERTY STATUTES. [R. S. 0. land ? So, if a squatter, who is generally understood to be a person without right or colour of right, enters on land claiming the whole lot, and occupies it for twenty years, cultivating part and leaving uncultivated the rest of the lot, taking his firewood and farm timber from it as he requires it, and using it in all respects just as the owner himself would if he were there, and just as all owners usually do use their wild land, is not this evidence of possession of the whole lot, wild land and all ? " ( j). Test of possession of more than actually occupied bj mere trespasser : — For such cases we must liave a wider rule than that restricting the mere trespasser to his pedal possession, i.e., to what he has actually occupied. The rule is therefore extended, as we hav^e already seen, to property over which the claimant has exercised continuous and open notorious acts of ownership. Or, as it is more fully expressed by Wilson, C.J., "In my opinion, when any person enters on a lot or half lot, or on any defined piece of land, wild, or partly cleared and partly wild, under colour of right or otherwise, and holds possession for the statutable period, the question for the jury should always be, as to the wild land, whether the person whose possession is in question has claimed or held the wild land (for there is no misunderstanding as to the cleared land) as owner, and has used it in like manner as the ownei's of lands, who have uncleared and unenclosed portions on the lots they occupy, usually use their wild lands, by such acts of owner- ship as owners are accustomed to exercise, or whether tlie acts of the person in question have been the acts of a mere trespasser, not done and not intended to have been done in the assertion of right, ti-tle or ownership (/.;). Mere trespassers must at least have exercised continu^oas and open acts of ownership : — "Incases of what is well U) Davis V. Henderson, 29 U. C. R. 353 (18G9). (k) lb. , ^-^ *' i: * i . i- ti Cap. 111.] ACTS OF OWNERSHIP OF WILD LAND. 873 understood in the country by the term ' squatters,' I have always thought that as against the real owner they acquire title by [twenty] years occupation of no more land than they actually have occupied, or at least over which they have exercised continuous and open notorious acts of ownership, and not mere desultory acts of trespass, in respect of which the true owner could not maintain ejectment against the trespasser as the person in posses- sion {I). What constitute acta of ownership of wild land : — Some of the acts that go to make up a complete exercise of ownership are enumerated by Wilson, C.J., in the following passage : — " Now, how is wild land to be possessed ? It is settled that it need not be enclosed. What better test can there be of its possession, than that the person whose possession is questioned should have used it just the same as any other owner uses his wild land, by asserting title to it, by giving licenses to out timber fi-om it or to pass over it, by excluding others fro .1 cutting or travelling over it, by cutting over it himself at his pleasure, by preserving the timber upon it, though he never has cut a stick himself, or by any other acts or evidence from which it may faii-ly be presumed he has taken the possession of the woodland as well as of the cleared " {m). " It may be said that he ought to do some act, such as fencing the lot on all sides ; yet if he did put a brush or other fence round the whole one hundred or two hundred acres it would only be evidence for a jury that he claimed and held possession of the part fenced. It seems to me that actual possession of a lot pai'tly clear«d and partly uncleared, as in the case before us, can only be evidenced by the actual exercise of such right and ■}■■ .i (0 Draper, C.J., in Diindas v. Johnston, 24 U. C. R. 550 (18G5). Cf. McMastiT V. Morrison, 14 Gr. 143 (1867), 2'«r Mowat, V'.C. (m) Davis v. Henderson, 29 U. C. R. 356 (18o9). h r% i 374 liKAL PHOPKHTY iiTATVTKS. [R. S. 0. t "•2 n dominion over the whole as a true owner would visibly exercise himself, and that it is for a jury to say whether from the circumstances attending such occupation they are satisfied that the party claiming was in possession of the land in question " {n). " As to the statute not running with respect to the wild land, I am of opinion that when a party goes into possession oi a lot of land which has been granted by the Crown, on which he clears and puts his fence from time to time as he may require to protect his clearings, and uses the bush land for the purpose of taking firewood, niivkin;,' sugar, and cutting timber as he thinks proper, and usinr,' it as the owners of such lands in the neighbourhood use tlieir bush land, although such bush land may not be actually inclosed by a fence, it is, nevertheless, drawn to the posses- sion of the I'est of the lot, and possession of part becomes possession of the whole. I do not consider that this view conflicts at all with the cases decided in relation to dispute ' boundaries, when it is attempted to extend an assumed conventional line on the naked possession of a part inclosed within a fence, to a part of the lot which has never been inclosed, and which parties cannot know was ever intended to be inclosed " (o). Doing such acts as above mentioned " and in various other ways exercising ownership, and doing other acts in relation to the whole lot consistent with or only referable to the occupier's supposed title and ownership — such acts would be evidence to go to the jury that for such period the person so living on and so dealing with the land was in actual possession of the whole one hundred or two hundred acres " ( jj)- (»i) Morrison, J., ib. at ]>. 35S. (o) Richards, J., in Wiprle v. IMerrick, 8 U. C. C. P. IW.') (18.j!l). Cf. Allisiin V. Rednor, 14 \J. C. R. 4(58 (1857). (/i) Morrison,.!., in Davis v. Ht'nderson, 2!t V. C. R. 3."8 (ISCfl). # _. I- .- V %jJi^ m.^f. Cap. Ill] DEPREDATIONS NOT ACTS OF OWNERSHIP. 375 Em ploy Iw/ a caretaker to j)rotcci ike propertjf is a sutficient act i>f [ownership : — "The proposition here is, whether a possession of part by a caretaker, expressly employed to protect) the whole, on behalf of one claiinin<; such whole by a paper title (afterwards shown to be defec- tive) and who does accordingly protect it from all other in- truders, can or cannot establish a statutory possession . . . We are not prepared to hold that unenclosed vvoodlan9). , (r) Robinson, C..T.. in Dk d. McDoiiell v. Rattray, 7 U. C. R. 32f5, (1S.-)0) ; ft. Wishart V. Oojk, 15 Gr. 238 (18(JS) ; L'.w v. MoVrison, 14 Gr. 195 (IStVS), f'k*'; i)f a mill ♦rectpd on corner of lot of wild land. Cf. Ashton v. Stock, 'C!i. U. 71!) (1877), owner of niin; takin,:? oals from liis neij^hbor's min'!. H 376 JtEAL I'ltOPEHTY STATUTES. [R. S. 0. re«jarded in the same light as an actual enclosure, or an actual occupancy, or poHsass'w iied'is, which being deKnitt;, positive, and notorious would put an actual owner ou his guard " (.s). " To enable the defendant to recover he must show an actual possession, an occupation exclusive, continuous, open or visible and notorious for [twenty] years. It must not be eiiuivocal, occasional or for a special or teniporaiy purpose . . . The acts relied on were nothing more, as airainst the true owner, than isolated acts of trespass hiivinir no connection one with the other. The mere acts of "-oin ■• on wilderness land from time to time in the absence of the owner, and cutting logs or poles, are not sucii acts, in themselves, as would deprive the owner of his possession. Such acts are merely trespasses on the land against the true owner, whoever he may be, which any other intruder might commit. There was no occupation of the lot by the defendant ;• there was nothing sufficiently notorious and open to give the true owner notice of the hostile possession begun " {t). Dispossession or discontinuance of possession : — "Dis- possession and discontinuance of possession are not both required by the statute, the expressions are used disjunc- tively, and there iij no doubt that it may happen in cases under the statul^e that one may by discontinuance have lost his right, when at the same time no other person can be saiil to have acquired a right to the property by possession against him (it). That may lead to consequences perhaps not foreseen or intended by the legislature : but it is a consequence noticed by English commentators on the statute ; not, however, as a circumstance which can prevent (,«) Donovan v. Herbert, 12 A. R. 311 (1885), Burton. J.A. {tl Ritchie, C.J., in Sherren v. Pearson, 14 .S. C. R. oSli (1887), ai)provinfi: D:w il. Desbiirres v. White, 1 Kerr N. B. 595 (1842). {it) It must be borne in mind, however, as we shall see, that discontinuance must be begun by the possession of another than the party discontinHing. M.MM: • »»r Cap. Ill] ESSENTIAL FEATURES OF DISCONTINUANCE. 377 an operation of the statute as a bar in a clear ca.se of discontinuance of possession. It would load to j^reat inconvenience, if a person who had sold a lot of land in parcels could come after [twenty] yours, and claim the benerit of a few inches, or a few feet of surplus unknown to any one, and intrude himself between adjacent proper- tie.s " (v). DiHtindion hetween (lisjyosscsfiion and (Uscontinuanee . —Dispossession ex vi termini implies the actual entry of some one. It is the act of another. Discontinuance is one's own act. It does not sinjnify merely ceasing to occupy, for tiie constructive possession will in such a case continue : Smith V. Lloyd, 9 Ex. 562. But I can easily understand that there may be a discontinuance of one's constructive possession and some act or admission, short of the creation of a legal title, which may transfer the constructive pos- session to another who does not enter into actual occupation. Wiiiv conduct would suffice to produce this effect must in every lease be de'^ided upon the facts presented. For examples, I may refer to Pringlev. Allan, 18 U. C. U. 575, where the subject is discussed by Burns, J., and to the judgment of the present Chief Justice of this Court, in Minvdtt v. Wtdker, 15 Gr. 155 " {iv). Essential features of discontinuance: — "The word 'disc(jnti nuance' I understand to mean an abandonment of possession by one pei-son followed by the actual possession of another person. This, I think, nnist be its meaning, for if no one succeed to the possession vacated or abandoned, there could be no one in whose favour or for whose pro- tection the Act could operate. To constitute discontinuance there must be both dereliction by the person who has the ^ .('•) I'er Robinson, C..T., in iJ-e d. Taylor v. Proudfoot, 1) U. C. R. oOT ("■) Patterson, J. A., in Van Velsor v. HuRlison, '.» A, R. 407(1882). Cf. thi- distinctions .siisforested in Riiius v. Buxton, 14 Ch. D. oil (1880). ' \ 1 \ in 1 ''''' ': ■ /< - :;' . 1 .S7.S HEAL PJiOj ERTY STATUTES. [K. S. 0. ri^Mit, and actual possession, whether adverse or not, to be protected " (.*;). " Tlicro is no dispoasoHsion, discontinuance of poHses.sJon, e d. Taylor v. Proudfoot, 9 U. C. R. 5«t> (1852) Cbp 111-] DlSCUNTlNUAXi^E OF I'OSSESSfON. 879 LiiiiitfitionH is that it ojieratos upon constructive poH.se.ssions (IS well as upon actual poyscHsion. . . . There may be acts, I think, (juite as une(|uivocal in rei^ard to constructive possession as of those which are actual " ((■)• Accordingly, in a case • here the plaintitt', livint;' noar the land and knowinj^" all about it, on a person who claimed it, asking him to point it out, did so, and on being asked by such clainuint to buy it, stated that he was willing to do that, but had not then the means, it was said by Hums, J. — " It seems the plaintitl' knew perfectly well at that time how matters stood with regard to the land, and one cannot help con- sidering it rather strange that he should want to buy his own lund, or if he considered himself, in any sense of the word, ill possessif n, either actual or constructive, that he should not then have told the person who came to him that the land was his own, or that he had possession of it. This evidence, it seems to me, would have been proper evidence to submit to the jury, to consider whether the plaintitl' had or not abandoned or discontinued the possession which the law would have cast upon him at tlie death of his father, if the patentee had made no legal conveyance " (d). Discontinuance of constructive possession should he evidenced by some overt or distinct art : — " His is not like the case of one having actually occupied, deserting or abandoning the premises without the animus revcrtendi, like a tenant when time has expired, or a mere trespasser or S(iuutter without title going off and relinquishing possession ; but his is like tlie case oi a government grantee or a purchaser of uncultivated lands not in actual posses- sion, and whose constructive possession derived under the ^'overnrnent patent or deed of conveyance is presumed to continue until it is proved to have been disturbed or put an end to by actual entry of a stranger, or by his discon- ll i! ('•) Burns, J., in Pringle v. Allan, 18 U. C. R. 583 (1859). {<() Ih. t ■ »■. 3S0 JtEAL I'lHil'ERTY STATl'THS. [R. S. 0. tinuing such possession by some overt or distinct act evincing the intention so to do " (e). The owner who has never been in actual (as opposed to constructive) possession is in rather a better position than one who has ; for it is not easy to say that he has been dispossessed (/), and it is harder to shew a discontinuance of a constructive than of an actual possession. Actual 2Wf^i^ession discontinued by departure iviihout the animus revertendi : — Where an owner fled from the province in 1814 under a charge of treason, Robinson, C.J., said of him : — " It would have been proper, it appears to me, in such a case to conclude that his inind was made up when he was still in this province, and that his discontinu- ance of possession was with no view of q\qx rosuiniag it"(ry). Evidence of dispossession should he unequivocal:— Wiiere the children of the survivor of two tenants in common claimed a property to the exclusion of the chihh-eu of the other co-tenant, Robinson, C.J., said : — " It may be that C. A. . . . did entertain the idea before 188ti that he could contest the right of his brother's family to any jjortion of the lot, and to keep the whole himself ; but if he meant to take that part, he should have acted in an une(|uivocal manner, such as could not take the otlier parties by surprise. They should not have been left to supjjose that he was still recognizing their right, and holding the rents and profits as their guardian. His being in possession of the mills and the land gave them no warning, because being at least tenant in common, he had as good a right to be in possession as they had, and his position as guardian would account for his being in pos- session of all the property. lie ought by an actual ouster, {>■) Macaulay, C..T., in />»(• Cuthbertsoii v. McGillis, 2 U. C. C. P. 1! (18.j2), case of absence from province. '(/J J)>e (I. Shepherd v. Bayley, 10 U. C. R. MO (1853). (;/) Butler v. Donaldson, 12 U. C. R. 2rj,-. (IS.'w). ■ ' •:! cai>.ni-] Uy DIVIDED MOIETY. 381 or by some act equivalent, f*.s by an avowed receipt and holding of all the rents and profits on his own account to have <;iven them to understand that he had changed his character and pretensions, and was holding independently of their right and of his office of guardian " (h). Xi> dii^possess'ion of undivided moufij : — "In Reading V. Rrn/ston it is thus said in 2 Salk. 423 : The Statute of Limitations never runs against a man, but where he is actually ousted or disseised . . . and where two men are in possession, the law will adjudge it in him that hath the right. A man may be tenant in common by prescrip- tion yet lie may not be tenant in common by wrong ; nor can a man be disseised of an undivided moiety " (i). Statute runs until dii^possessed owner restored to 'pos- session : — " When the statute has once begun to run it would seem on principle that it could not cease to run unless the real owner, whom the statute assumes to be dispossessed of the property, shall have been restored to the possession. He may be so restored either by entering on the actual possession of the property, or by receiving rent from the pei'son in the occupation, or by making a new lease to such person, which is accepted by him ; and it is not material whether it is a lease for a term of years, from year to year, or at will " (j). 5. (2) Where the person claiming such land or rent claims tlu' estate or interest of some deceased jierson, who continued in s\icli possession or receipt in respect of the same estate or interest, until the time of his death, and was the last person entitled to such estate or interest who was in such j)os8ession or r"cei|it, then sucli right shall be deemed to have first accrued at the time di" such death. On abate- ment or death. Imp. Act, 3- 4 Wm. IV. c. 27, S.3. " When the claim is of the estate of a deceased person in possession at his death, being the last person entitled who ('■) Ingalls \. Arnold, 14 U. C. R. 304 (18u7). (0 Cited by Rose, J., in Arnold v. Cummer, 15 O. R. 384 (1888). (.) Day V. Day, L. R. 3 P. C. 7G1 (1871). ^, M > 1^ 11 382 JiJiAL I'ltOl'lCRTV STATUTES. [K.S.o. shall have been in possession, the period of accruer is the death of such person. Thus, where A., seised in foe in possession, dies either intestate leaving B. his heir, or having devised to B. in fee or for a less estate {k), and C, a stranc-er fi)'st ol)tains possession after the death of A., the time runs acrainst Pi. from A.'s death and not from C.'s entry " (/) On alieiiii- tion. Iiiij). Act, .{.4 Win. IV C. '1~, s. o. 6. (3) Where tlie ijerson claiining' sneli land or rent cl.i'iiis in respect of an estate or interest in ixissession, {^ranted, iiii|i(iiut<'d or otherwise assured by any instrument other than a will, tn liim or some V'rson throug'h whom lie claims, hy a iierson Uiinfr in respect of the same estate or interest, in the pusstssinn or receipt of the profits of the land, or in receipt of the rent, and no person entitled under such instrument has been in jio-scs^ion or recei])t, then such v'\^\\t sliall Ije deemed to have first accniwl at the time at which the person claiming as aforesaid, or the person through whom he claims, became entitled to such posst;.*- sion or receipt by virtue of such instrument. " (Hliev fluin a ivill " .• — Sec James v. Salter, sujirn. Cestui que trust in possession : — See Garrard v. TuA, 8 C. B. 231 ; Doe v. Phillips, 10 Q. B. 130. As to lands not cultivated or im- proved. 5. (4) In the case of lands (rranted by the Crown (if wliioli the grantee, his heirs or assigns, by themselves, their servant- nr agents, have not taken actual possession by rtsiding uin.ii oi- cul- tivating some portion thereof, and in case .some other person n^t claiming to hold under such grantee has beea in jiossissiun ( f such land, sucti possession having been taken while the laiid \v;is in a state of nature, tiien unless it can be shewn that sucli grantee or such pc-rson claiming under him, wiiile entitled to the laii Is, had knowledge of the same being in the actual imsses-iun of such other person, the lapse of ten years siiall nut bar tin- right of such grantee, or any person claiming under him tci liriii!,' :in action for the recovery of such land, but the right ti) brini; m action shall lie deemed to have accrued from the time that such knowledge was obtained : but no such action shall be brought er entry made after twenty years from the time such possession was taken as aforesaid. Under the present sul)-section we may con\'enieiitly consider, how far the Crown is att'ected by the .Statute oi Limitations, both generally and with respect, particulariy {k) But see James v. Salter, 3 Bing. X. C. 554 (1837). .(/) Hayes' Conveyancing, Vol. I. p. 248. See further Baines v. Luniley, 16 W. R. (>74, tenancy year to year, rent not governed Viy this sub-section. Proviso. B-f m^...^*'' **»s' 4( " 11 tl '1 , C;.i..in.] HOW STATUTE AFFECTS CRoWy. 883 I. that sucli llirought I'l' leniently latute of biculai'iy tction. to waste lands ; also how far the present sub-section affords riiotiction to the grantees, or, as they are usually called, patentees, of such lands. I low far Crown ntui/ ^et up Sditufc of L'nnitiilu>n^ : — \\. S. C.'c. 130, "The Petition of Kiu-ht Act" has tlie following provision : 8. Tlie .stattiupiit of dcfi'iicc or (liinnnvi- may I'iiise, besides any legal or f(iuital)le defences in fact or in law available under this Act, any legal or equitable defeno's wliich would have been available if the proceeding had been a suit or acti m \\\ a competent court between subject and suijject ; and any ^'rounds of defence wliich v.culd Iw sutHcient on behalf of Ifer Majesty may bo alle^'ed on behalf of any such person as aforesaid. 31* \. c. 27, s. S. Tudor this section it is clear that the Crown may, in proceeiHno's by petition of right, claim the benefit of The .Statute of Limitations (?n). 39 V. c. 27, was pas.sed in 1870, previously to which there was considerable doubt as to the right of the Crown to st>t up the statute. The matter is discussed in Mfijucen V. Till' Qiwen (d), b}' Strong, J., who says: "I have con- sidered the case of liustomjce v. 'fhc Queen (o), holding tluit The Statute of Limitations of James L was not a defence which the Crown could set up to a petition of light. That case is, however, clearly distinguishable from the pre.sent in these important respects. The iMiglish Petition of Right Act, 1800, which applied to the case of liu^tomjee v. The Queen contains no provisions similar to the 7th section of the Canadian Act just set out. Further. it appears to me to be (juestionable whether the decision in Ibixtomjie v. The Queen, which relat^-d to a quasi personal 'leiuand ao-ainst the Crown, the reniedv for which, not the iiuht itself, would be alone barred b}^ The Statute of Limitations applical)le to it in the case of a subject would On) Per Ritchie, C..T., in McQueen v. Tlie Queen. 1(1 S. C. 11. 60 (1>.S7). ('0 /'>. at I). 81. o) 1 Q. 13. D. 48 h 384 REAL PROPERTY .STATi'TES. [R. S. 0. apply at all to a claim to recover land where not merely the remedy but- by the express words of the Act, the " right and title " of the claimant that is his right and title against all the world, became extinguished at the expiration of the statutory period." Crown not barred by Statute of Lhnitationfi : — "Our Statute of Limitations in regard to real property, 4 Win. IV. c. 1, does not bind the Crown (j)), nor has any legislative provision that I am aware of been made in Upper Canada, or in Canada since the union, placing any limitation upon the Crown in respect to the time within which its title to real property must, under any circumstances, be asserted " (q). Croivii not barred even though a trustee: — "I think I am bound by Regina v. Williams, 39 U. C. R. 397, expressly deciding that the Crown is not barred though a trustee (?•). Extent of rule excepthui Crown from operation of Statute : — " The principle . . . was to be found every- where uniforndy stated and plainly recognized, that the king could not be dispossessed ; that an intruder upon the Crown consequently gained no estate or interest by his possession ; that the Crown could grant the land as freely as if no such intruder were upon it ; and that the grantee of the Crown in such a case, would by force of his grant he seised of an estate in possession in the eye of the law " (s). Accordingly it is not necessary in case of a person being in adverse possession that the Crown should proceed by information of intrusion before granting the lands to a (p) Cf. Boc West V. Howard, H O. S. 464 (1837). {. 111. LIMITATIONS AHAIXST THE CliOWX. 385 piitfutiT or that the gi-ant should specially convey the Crowns I'in'ht of entry on the land to the grantee (^). i'l-divn mast direst itself of the fee hrfure statute can run : — Where one of two lessees of the Crown encroached on the land of the other, each being- supposed to have one halt' lot, and after more than twenty years of such posses- sion tlioy obtained patents for the respective half lots, the <|U(stion arose did the possession of the encroaching party bar the other : "The statute did not begin to run till the Crown had divested itself of the fee. . . . It is impos- silile ':'or us to hold that an encroachment by one tenant for years upon another tenant for 3-ears, both holding inuler lease from the Crown, can have had any effect under the Statute of Limitations upon the title to the fee. The lii^hts of the Crown were in no way interfered with Ijy such encroachment" in). Wlidt Limitations as against the Crown ? — By an Act passi.'d in the reign of George III. and generally known as x\\(iXallii.)n Tempus Act('_') it was enacted that the Crown should not thereafter bring action against any person or body for or concerning any lands, etc., or the profits thtToof, by reason of any title not first accrued within the space of sixty j'ears next before the bringing of such action : unless the Crown (or those through whom the Crown claims) should have been answered (w) the rents, etc., bv virtue of such title, or the same should have been '/((/(/ ill charge to the Crown or have stood insuper 0/ / fS (0 /''. >••■(. also Hill V. McKinnon, 16 U. C. R. 216 (18.58). (") /'•/• Robinson, C.J., in Janiieson v. Marker, IS U. C. R. 59;} (1859). Artirnu'd in Dow.sett v. Cox, Ih. p. .594, ('■) !)Geo. III.c. 16. I"') To answer means to become the debtor of, nut necessarily to pay Stroud's ,Tu(l. Diet. 39. I'l //( sii/»'r: del)itin!? or cliarging a person in an account. E. IJ. C. R. 'i'.V (1^7•i!• {(i) Cf. Wiitwn V. Lindsay, A. R. (118 (ISSl). {!') Rohinsoii. C..T.. in Rfglna v. McConi.ick, 18 U. C. R. 1"1 ll^'=''> citing Doc W'ni. IV. >-. Roberts, l:! :M. &. W. ,52(». ''U,' 1^ n s.o, tyto any .1- t\\e ii was ■A A a) \ to ^)e law of (\ civil kin^ i« _•• Vwhv •voni the Ut \uvler iwiif'l l)y lout Y'^y- (,n. The \XC \)OSSt'S- ohvitimv^ Some e tiuU the ot V'l'^''''^' siou takon assovtiiig Ig, t\»*." crt^^^ } ivatuve of its iavouv 11. ',v.".» U^'"^' Cap.ll^'] NULLUM TEMl'US ACT. 3S7 R. r,i ii^'^ :f)\ one or other of tlic exceptions containeil in the statute, namely : that within the sixty years His Majesty or liis successors had ' by Force or virtue of his rioht or title to the land been answered the rents, issues, or profits of the liiu'l': ov that the land 'had within that time been duly in charj^e to His Majesty, or some of his predecessors, or siiall have stood in super of record within the space of sixty yoars.' It is only, I think, in regard to lands of which that iiiii;ht be predicted that this statute can have been inteniled to apply " (c). Xiillu/ui Tampiis Act does not applij to waste hinds of ('i'(ivi) : — " Looking at the two statutes of Upper Canada with respect to the public lands, 2 V. c. 15, and 12 V. c. 9, ami others also, I do not think the legislature contemplated tlie Act of 9 Geo. III. c. 10, to be applicable in Upper ( nada t(D lands for which there had been no grant, lease, ticket, either of location or purchase, or letter of license or iccu|i:iti<)ii. In the provisions of these Acts no time is nniteiuplated v>dien the Crown would be barred from takiny the sunnnary remedy provided in the two specially mentioned I have no doubt we must consider the Act called Xidlu.m Tern pits Act, as part and parcel of the law of this province, so far as atiecting lands, the rents, revenues, issues or profits of which the Crown has taken or received, or where the lands can be said to have been 'luly in charge at some period, so that the Act woidd iiltply; but with regard to the public waste lands vested in tlie Cro'vu, I take it they n)ust be looked upon as at C')i!ii'U" ■■■\v. wiuhout being bound by that statute ((/), . ■■ present pi'ori sum as to waste lands .- — It being seti.k'ii il tile Crown is not affected by the statute, it rei!iaiue the extreme limit instead of forty years, which was the limit at the time of the above decision. (/) Doe McGillis v. McGillivray, 9 U. C. R. 12 (1652). Iirtitv''^ Cup. 111. ACTUAL POfiSESSION JiV (illAXTEE. .SS!) )ssession or any it fact ov m l>y the whether [ite comes \'\iich the ,t actually le \wrtion L- the right s, unless it ^uig under justly in cases of mere trespassers, preten(liii<>- no riglit occupyint^' wild lands without knowleil(,^e of their owners, has a hard operation in the case like the present — where, in tiic tirst place, the parties who have heen all the time (iccnpyiiiLf were bona Jide purchasei-s holding under deeds which they suppo.sed gave them a good title, and where the jxiteiitee did not by himself, his sei'vants or agents, take possession of the land, becau.se he tells us himself he was not aware he owned it. He was not, like the owners of wilil land, reposing on the goodne.ss of his title, assuming that no one would take possession of it wrongfully, anil therefore not putting himself to the trouble (which the staiute excuses him from) of exploring the wilderness to .see wliether it has continued unoccupied " ((j). Wlidf constitutes " actual pof^sess'ion" by the (jrantec : — " Where the patentee built the house on the land granted t ) her, and occujned it, and cleared and cultivateil the part so cleared for .several years, she was, in my opinion, in the words of the statute 'in the actual posse.ssion by residing upon or cultivating some portion thereof.' She had the iictual possession of all the land she had the title to. She 'li'l not enter only into the part she built upon and culti- ViitL(l. she entered into every part of the lands granted to her. " If a grant had been ma ■v^ * HEAL 1-liOl'KliTY STATUTES. [\liiA). upon tliu whole lot, und uxerci.setl the like acts of o\Mit;r- nhip over it by cutting timber on it, or by Heilin;^- timber from it, and the like, or by fencing it on some part or parts of it, just as other proprietors did or usually do in tlu' liki case. " While it may U, difficult to say whether the unuitHc has taken actual possession of the whole of his ;;Tuiiteil lands when the g'rant is of a lai'ge (juantity, such as two or more lots, merely because he has built upon or cultiviiteij 8ome part of his whole ft-rant, it is less difficult to s,iy s i, when he is the grantee of a smaller piece of land such as a single lot or half lot, whether his building upon w culti- vating ' some portion thereof ' is a taking of the iictual possession of the whole land wliich has been gi-aiited to him, and that difficulty would be more and more rcMuowil by the reduction of the extent of the grant until at some particular amount of acreage it M'ould wholly lis- appear " [It). " Adiial possession must he sahscqiunit to pati'iit" ;— It seems that the possession nmst be sul)se(iuent to the jwiteiit to exclude the patentee from the benefit of this sub-sfctioii. Thus, in Steivart v. MarpJiy [I), B. went upon the luml t" perform settlement duty, and then conveyed to H., frnm whom the plaintiti' claimed. B. then left the country, atur which the patent was issued in his name. It was hcM tlmt the plaintiff was not excluded from the benefit of this provision by the occupancy of B. It was also considereii very doubtful if such occupancy for the mere puqiose ot settlement duty, even after the patent, would have exchnle i the plaintiff. Onus of proof that patentee ever in possession : — Hit? onus is on the defendant in ejectment to show " thtat tlu' grantee of the Crown, or an\' one under him, ever actually (h) Beigle v. Dake, 42 U. C. R. 259 (1877). (i) 16 U. C. R. 224 (1858). CV|.. 111.] '^^' (UlANTEt: ESTITLED To LAS Ik -^ •^ _* ;}!)! occupied, or luid notice ol" any other occupant Itcing" in jiij.sst'ssion '' {}). " Soinc othrr per.so)i vof (iidniui;/ fn Ituhl under such iji-antae: — "The case provided for is where a i)erson not claiiiiini^ under the yrantee taives possession of wild land without tiie knowled<;'e of the ^n-antec or those clainiinjjf iimlor him. The case before us is just the opposite in its C()in]ilexion. . . . Tiie patentees vendee, haviiif^ u pertV'ct paper title, entered into actual possession, and lins lit,'l(l it for [twenty] years after the ri^-ht of entry n<.vv sought to be enforceil lirst accruet claimini;' to liuld under such grantee has been in possession of such land " : and it does not upply to me.' This appears plausible, I'Ut it is more ingenious than sound : for, as the fact was, lio tiH)k [lossession of the land claiming it under one who was not tlie grantee of the Crown, as the jui-v have t'nunil"(/). " 117^7^' eiif'itled to the loud-'t'' : — Where the only know- Itilgr shown was in tlie devisee and widow of a pei-son who lii'lil a 1)1 )nd for a deed from the owner, this was held iiisurticieiit : " tniless the widow ... is shown to have li:id sucli a title as would give a right of entry on any per- ^"i) in jjos.session, her knowledge must be innnaterial " (m ). . (;) />"'■ MuKay v. Pimly, (J O. .'^. H') (1S41). As to what cuiistitiites fvidHiuf of ^Mch ])ossi',s.si()n, ^'•' Arinstvoiif,' V. Stewart, 2a U. C. C. I'. ItW (l-*?')); V.mui,- V. Elliott, Zi U. C. H. 420 (ISiU). U) I[a;',irty, J., in Ciwhins v. McDonald, 20 U. C. R. OOft (ISC,?). (/) TuH.y V. Willianisun, l.T U. C. C. P. oil (ISlJo). '") .(oliim.m V. McKenua, 10 U. C. R. .•>24 (IH.i.S). As to knowledge Imids or liiultrr I i)iiits : — Six Mtistul,;i Mill and Lamhi'v Co. v. McJJennutf (»). fi r I' i'V:^ il^i.' .*, When rint uiiiiiuiitiiiK to 8-J reht-rv- (;(1 !)>• l«'il.ii' in \\rit:in(^ hiiH liccii wminffiilly recfivi'd, riglit ll('()lllt'(', to accnif at the tiiiif tlu' rent was wronKfiilly received. Iniii. Act, ;{-4\Vm. IV. c. 27, s. !). 6. (5) Where any iierion is in iiosMeHsiun or in receiiitof the lirutits of any hmd, or in ri'Ceipt of any rent by \irtue of a Iciw.' in writing hy \\ hicii a rent anuninting' to tlie yearly Huni of ifi nr npwards is reserved, and the rent reserved by hiicIi lease \nu been received by some ])t;rs have first accrued at the time at wliicii the rent recerved bysiicli lease was first so received by the person wrongfully claim iiiff us ttforesaiil, and no snch right shall be deemed to have first aicnicd upon the determination of sucli lease to the person riglillully entitled. " Wromifalln claiinhyf " : — " Wron^'full}' " may ict'ci' U> a mistaken claim as well as to an intentional claim : "the other argument that — the word ' wron<:jl'ully ' excludes the receipt by mistake, or any matters cjf that description, iiiid nnist mean an intentional and improper claiming- ol" the rent — I reject altogetiier ; and I am satisfied that it is not the true construction of the .statute. It means a person not entitled, who makes a claim to the rents against the peison who is entitled " (o). Mm 1)1 1)1/ of "rent" in i/)is toih-scvtioii : — "The wonl ' I'cnt ' is there used seven times. The first time it means )'»'nt cliarge ; the second and third, I'ent reserved, the fourth. rent char)\ or r/xTs. I i!il III ic nf 11 III it((t'ii)V< lis f(t hdsrs: — In Jhii i'liiij: v. IhiiirfrM ((j), wliere more tlinn twt'iity ycms liml dupsiMl since the last payinoiit of i- nt, l»ut not sinct' the tlotur- iiiiiijitioii of tlio Ictisf, it was lu'hl that the Statute oi Limitations tlien in Torce (21 .lae. I., c. K!) did not apply. Tiiiii' ii'liiii viijlit iii'i'i'iii's (iiiilcr l/iis .srrliini : — " When is the riyht to i-ueo\'er possession of hind, suhject to a h-aso, t) l)e considered as havinj,' accrued :• Not from the time wlicn any person dealing with the leases oi- dealin*,' with tlidse who are entitled to the leases, <;'etH ))ossession, and claiiiis to be entitled in fee, hut from the time wlien the pi'i'sou flaiminj^ under a lease })ays rent to a party elaiminj;- widiij^fully in reversion innnediately expectant on such liiise : for then the adverse title of the person who receives the rent under such circumstances is tirst really l»r(iUL;ht int()o])eration a<;ainst the party who claims on the expira- tion of the lease "' (/'). T'l/Kiif scftiiKj iii> title idlri'i'sc in Ills {ii iiithnul'H : — " If II tenant sets up a title hostile to that of his landlord, it is ii I'oi'feiture of his term : and it is the same if he assists lumtlier person to set up such a claim " (n). ]\' I'limifal pevvejiiion of rents iiij cxrcntoi' ordijciit: — Where an executor, actin<^ under a void devise, collected rents and paid them over to J. for more than ten years. IJovd, C, said : -- " At the testator's death, the persons rii^htfully ('/) 7K,ist, 5!»!) (ISnCl. Cf. Cliolniondeley v. Cliiitdii. Turn. iV. Iluss. US ^^L':<), fur rule in (■((iiity ; 'I'.iyldi- v. Honk', 1 lim-r. (id, Mn^'iluliii Iluspittil v. I.'llott^, 4 All)). Cas. ;i2-l, iis tu vuiil U'lisc. (') ('liiidwifk V. Bruadwo'Ml. aiJcav. ;{1('. (1S|((). Cf. Twiss v. NMlil.tt, I. K. 1 K(|. (1((; Ardilxild v. Scully, it II. L. (.'. .'iUO. S.;' fuitlnr Sl..aiicv. I'liHid. .'i jr. C \u 75 ; Shaw v. Ivcijjiiron, I. U. 15 Kq. .">74 ; Drew v. Nnihury, 3 •1. k Lat. 30(1, as to wrDiipfuI rcc»'i|tt. (M l)n,.Kll,.rl,r(,ck V. Flvim, 1 O. M.^t U. 1.S7, Ml (ISin. Srr further 1>|«' V. W.'lls. 11) All. & Kll. 127 (IS;<1)). jiu'rc (iral disclaiiiier of laiidl(ird'< titl.- iin i:iiis(M)f f irfcitiiri' ; unli"^s a direct repudiation or claim in\()l\ injr such ; i'"i' <;ray v. Stanton, I M. A; NV. 70H (Isl^d), citinu Doe v. ^a^.. J}. '2.j(> •Ml) ; Fenuer v. Duj.lock, 12 I'.iiig. lU (IS1>4). i '' nl] 1 i 'f \ . \ r. w- « -*> if! ^u r« ' 394 REAL PROPERTY STATUTES. [K. S.O. entitled to collect the rents were the heirs-at-law. The perception {t) of these rents by the executor was from the outset ' wrongful ' within the meaning of the statute ((d; Williams V. Potts, L. R. 12 Eq. 149. The collection of the rents by the executor and the payment of them to J. was in effect n possession of the land by J., in favour of wlujiu tiie statute would run " (v). Disthnction between wrongful perception and alloiviDij lessee to neglect iviynient ; — " Now, when did the statute ' begin to run ? On the non-payment of the rent, or at the end of the lease ? If the rent had been paid to any one so that E. and his heirs had been disseised of the i*ent, the statute would begin to run from that time ; but no rent was paid, and the statute only ran as against E. and those claiming under him from the termination of the lease. . . . . The case falls within the latter branch of the tliinl section (w), which in the case of an estate in reversion provides that the right of action shall be deemed to have first accrued when it became an estate or interest in possession " (.r). Encroachynenfs hy tenant: — A tenant taking in l.ind adjacent to his own by encroachment must as between himself and his landlord be deemed lyrima /arte to take it as part of tiie demised land ; ])ut tliat presumption will not prevail for the landloi'd's benefit against third persons: so that possession by the tenant of adjacent land will not enure to create n title for the landlord (g). I ,f 1, , b. (t) " Perception": L. pfroiiit'vc. to take wholly or crtirelv. >'"' - U'' Com. 103; Kor.ntze v. Omaha Hott-l Co., 107 U. S. 3i)3 (lS?-_'). (u) The present suVj-section. (y) Hopkins V. Hopkins, 3 0. R. 232(1883). ((f) Of 3 ic 4 \Vm. IV. c. 27 (Imp.), now Hub-.section 11, infra. (.1-) Liney v. Rose, 17 U". C. C. P. 188 (188()). eitinp Doc Uavey v. Oxen- ham, 7 M. &' W. 131 (1840) ; Doc Johnston v. Liversedge, 11 M. .^ W- •'!' (1843). (y) Smvth v. Leavens, 3 l^. C. R. 411 (1847) ; Doc Bad lelev v. NLvsey, 17 ti. B. 373 (i8r)l) ; Bhiyea v. Rose, 10 O. H. 438 (1800), M.icMahon, -I. w Cap. 111.] TENANCY FROM YEAR TO YEAR. 395 Cam of lease void ah initio : — Where a lease of cliarity lands not being in conformity with the statute 18 Eliz. c. 10, was adjudged absolutely void, the Court also held that the right to re-euucr existed from the moment of the execution of the lease (s). 6. (()) Where any person is in possession or in receipt of tlie profits of any land, or in receipt of any rent as tenant fruai year to year or other i)eriod, without anylea.se in writinj?, the right (if the person entitled subject thereto, or of the person tliror., person lifter a ten- ancy from yi iir to year til have any riu'lit but frum theend I if the first yi'iir or last I>ayment of rent. Ini]). Act, 3-4 Wm. IV. 0. '27, 8. 8. "Tenant from year lO year": — Woodfall gives the following definition, " A tenant from year to year is one who holds under a demise (express or implied) for a term which may be determined at the end of the first or any subse(iuent j^ear of the tenancy, either by the landlord or the tenant, by a regular notice to quit" («). " Without any lease in writing " ; — "A lease in writing: that is not merel}'' an instrument which would be evidence of the conditions of holding, but one passing an interest " [h). The interest of a tenant from year to year does not •letermine on his death, but is an interest transmissible to his representatives " (c). (c) Magdalen Hospital v. Knotts, 4 Apn. Cas. 324 (187!)). Ildd, prr Lord Selhorne, that if any rent, however small, nad been reserved atid receiveil it would liave created the legal relation of a tenancy from year to year and pn- vented the currency of the statute. ((() Landlord and Tenant, 15th Ed. 230. Cf. Doe v. Wood, 14 M. & W. «)82. ,Sec notes on page 32, supra. See, also Arehbold v. Scully, !• H. L. C. ;W0 (1861) ; Drummond v. Sant, L. R. 6 Q. B. 763 (1871). ((') Coleridge, J., in Dne d. Landsell v. Gower, 17 Q. B. 509 (1851). (c) .James v. Dean, 15 Ves. 248 (1808), citing Doe v. Porter, 3 T. R. 13. IS 3<)G REAL PROPERTY STATUTES. [R. S. 0. As to payment after statutory period by tenant from year to year, see Bunting v Sarr/ent (d), Sanders v. Sanders (e). For further cases on tenancy from year to year, see Due V. Wood (/), I)enn-v.Cartwright((/),Doev.Pullen{h]. In the case 6. (7) Where any ])er8on is in j)os.sesHion or in recei|it of the "' " .^J'"^'**' prutits of any hind, or in ivc«ipt of any rent, as tenant at will, ria-ht slnll ^'"^ right of the person entitled subject thereto, or t)f the persi ii be fleeniecl through whom he claims, to make an entry or distress or to to have ac- bring an action to recover such land or rent, shall be deemed to crueil at tno have first accrued either at the determination of such tenancy, end of one , , ■ ■ , ^ , or at the expiration of one year next after the conniienuement of such tenancy, at which time such tenancy shall be deemed to have determined. year. Imp. Act, 3-4 U'm. IV. c. 27, s. 7. Change operated by irremnt section: — There is a long antl instructive criticism of tlie present section in Dae Feri'ii V. Henderson (i), in which Robinson, C.J., shews ho'.v the franiers of the Act, i.e. the real property coin- missioners innovated to an extent o'reatly beyond their intentions as expressed in thei)' report. He says : " They treat the subject thus: 'o-reat ]n'actical difficulty (they say) has arisen in detei-minino- Avhat is ad rcr.^e possession, anil where it shall be considered to have bemni. 77/ /.s rmisl fjeneralbj he left as a question of fart for a jiinj. Kut there are some rules of law which absolutely prevent the possession from bein"* considered a(herse (when it is in fact so, the commissioners mean), and the expediency of {'!) 13 Chy. D. ;W0 (187!)). {<•) lOChy. D. 373 (1881). Cf. Stayp: v. NVyatt, •-> Jur. 802. (,/') 14 M. & W, ()S7, implication of tenancy from year to year from pay- ments of rent. Cf . Doe v. Dodd. ") U. i*c Ad. (i.S'.l ; Jk'avthwayte v. Hitcl'.cock, 10 M. i^c W. 4!)7 ; Bishop v. Howard, 'l 15. it 0. lOD. jjut ««' Doe v. Cia«c), 6 C. li. '.)0, as to evidence in rebuttal of implication. ('/) 4 P'ast, 2i» (1S()3), lease for at least two years. Cf. Doe v. Gr.'e!i, !t Ad. & EH. K^^ (lS3it) ; Thompson v. Maberlv, '1 Cn-iipl). a73 (1811) : r.uek\v,.itli v. Simpson. 1 C. M. & R. 834; Birch v. Wri-ht, 1 T. R. 378 (178(1) ; Doe v. Geikie, r. (^. B. 841 ; Doe v. Smaridge, 7 Q. 1'.. !i'>7. (h) 2 Bing. N. C. 74'.t, 7o3 (183(1), tenant h()l.lin^' after term liecomes tenant, from year to year. Cf. Doe v. Wiitts, 7 T. R. 83. (/} 3 r. C. R. 4S(1 (1S47). u% Ci-i.. 111.] TENANCY AT WILL. 39- which is very questionable, as they do not seeiu necessary for preserving; riglitful claims, and they greatly impair the lieuling tendency of the Statute of Limitations. One of these rules is, that a possession which began rightfully, cannot be considered as having been wrongful ; that is, adverse as against the rightful owner, by being merely continued after the right of the party in possession has determined. It appeal's to us that it should he ojK-n to a jury to find that (tdverse possession began from the determination of the rightful estate of the party.' " After reading these explanations, given by the com- missioners of their views, one can hardly imagine that thoy were conscious that they were proposing enactments which, if adopted, were to have the effect of doing away tiienceforward with all distinctions between adverse and non-adverse possessions, t nd leaving nothing ' ojyen to the jury ' upon the point. Yet in Doe dein. Knight v. Nei>eav, 2 M. & W. 894, and several other cases, that has been (leterniined to be the effect of the new Act." Nature of a tenancy at will : — " A tenant at will is, where lands and tenements are let by one man to another to have and to hold at the will of the lessor, and the tenant by force of this lease obtains the possession : 1 Litt. p. 41, s. 68. " In all cases wliere a tenancy at will is created, whether hy express agreement, or without express agreement, as where, pending a treaty of sale, the purchaser is let into possession (j), or where he takes possession under a void letase, he enters acknowledging the title of the vendor or lessor; and thus the relation of landlord and tenant is established " {k). (i) f 'f. Hegan v. Johnson, 2 Taunt. 147 ; Dunk v. Hunter, 5 B. & Aid. 322 ; Diif V. Chamlierlaint, 5 M. & W. 14. ik) M'Ni.sh V. Munro, 25 LT. C. C. P. 297 (1875), i^r Patterson, J. .^v« also Rommell v. Henderson, 22 U. C. C. P. 180 (1872). h .S9S MEAL PROPERTY STATUTES. [R. S. 0. Good iKifu/re or inattentioii may cause a man to lose /ti'.s" estate: — "This is a stringent rule, which the statute prescribes, and one that may lead in some cases to great injustice and hardship, where there has been an occupation permitted as a matter of indulgence or through mere inat- tention, to a party wlio had never defied or questioned the title of tlie rightfiil owner, and who had never pretended to have a title himself. Still the answer is, that under the provisions of this positive law, good nature or inattention may occasion a man to lose his estate, liowever clear may be his right, for that the jirovisions of the statute are peremptory, and that it is necessary to enforce them, in order that all maj' see that there is an absolute and inflexi- ble rule which will be adhered to, for the sake of ([uieting possessions " (/). Stataie not to he liherallij construed as against former owner : — " It is no less true and just . . . that no mans legal title should be extinguished by the operation of this statute, unless the facts are such as do clearly, and without the aid of any liberal construction, bring his case within it ; and that he sliould have the full benefit allowed him of every exception which fairly takes his case out of the statute. So much, at least, is due to the former owner of the estate " (til). Sometimes it will favour the former owner to construe the occupant as having entered as tenant-at-will rather than as trespasser, thereby adding a 3^ear to the recjuirtd period. In such cases the Courts shew an inclination to construe the possession as having commenced in a tenancy at will {n). Interriqotion of tenancy at will ; statute runsfrorn the creation of a new tenancy : — " We have thus a conjunction (I) Robinson, C..T., in Doe d. Slu-plK'ifl v. Baylfy, 10 U. C. R. 31S (18:'3). Cf. McLaren v. ^Nlorpliy, lH U. C. R. (i()!» (IWiO). (m) Robinson, CT., in I)-,e ); find next, the creation by implication of a lU'W tenancy at will as between the lethal owners of the estate— the trustees — and tlie cestui que trust (}}). The (.'linnicter of the two holdings is (inite distinct, and the hittt 1' is exclusive of the former. Apart from fiduciary ivliitionship, it is plain that here the running of the statute is interrupted, as laid down in Hodgson v. Hooper, 3 Ell. iV KU. at p. 171. If before the right of entry upon a toiuuit at will is gone, the tenancy is put an end to and a iKW tenancy at will created by fresh agreement express or implied, then a fresh right of entrv accrues and an addi- tidUiil period of twenty [now ten] years nui'-^" "un before that entry would be barred "(•). A'>V(l, C, in Re Defoe, 20. R.()2:) (18S-.>). But see Locke v. Matthews, 13 C. 15. N. S. 75;5 ; Turner v. Doe, !t M. & W. 643. ('•) Smith V. Keown, 4l> U. C. R. lliS (1881) ; sec also Cooper v. Hamilton citwl supm as to effect of submission; Pearson v. MulhoUaml, 17 O. R. oU (188!i); Workman v. Robb, 7 A. R. 38i) (1882). (»l Day V. Day, L. R. 3 P. C. 7«2 (1871). (0 ItiO. R. 570(1888). '"n '^ 400 REAL PROPERTY STATUTES. [R. S. 0. was made conveying the leo-al estate to D., one of the conditions beint;' that D. should release the defendant from cei'tani debts. " The defendant knew «)f the deed . . and of the agreement it was intended to carry out and the benefit he was to receive upon its being given, and he allowed the deed to be given Avithout any objection being made by him, and received the benefit it conferred upon him. Under these circumstances, I am of opinion that he is precluded from asserting that this deed did not convey the possession it purported to convey, and from settini^ up an}^ possession in himself prior to such deed ; Re Shaver 3 Chy. Ch. R. 879 " [u). Requisites for agreement creating neiv tenancy/ ; — " As stated by Sir William Erie, C.J., in Lock v. Matthew^ (r) ' if the owner enters effectively, and creates a new tenancy at will, he lias [twenty-one] years from that period before he can forfeit his estate.' The language and policy of the statute recjuire that to constitute this new terminus a quo, the agreement for a new tenancy should be made by the parties with a knowledge of the determination of the former tenancy, and with an intention to create a fresh tenancy at will " (iv). Mere cleterinination of tenancy at will after one year will not stop currency of statute : — " I have felt and still feel, veiy great difficulty in holding that a son holding for seven or eight years as tenant at will under his father, can procure the latter to borrow money on mortgage of the land for the use of his son, who receives the money and spends it, and yet is not to be held as bound by such an act to the admission that at that time the land was his I: vrinour, C.J., ;it p. 57."), who also held that any jjossessioii tliat tlie rU',;i,i . . r, i, ht clniiri at all, at the Kiving of ttie deed, was as teiiant-at-will. ■:») • xl N. H. 7(J1. ■"•• '^" - Day, L. R. 3 1'. 0. 703 (1871). See Williams v. INIcUomild, Oo '- . i -J (1873). J 4 f:'J 1 Cap. 111.] DKTEltMlNATIOX OF TEXA.WY AT WILL. 401 father's, and so prevent the Statute of Limitations from continuing to run from an earlier period. " But the autlioi-ities show that the Statute in the pi-eseiit case certainly hegan to run at the end of a year t'runi the defendant's entry, and the l»ar under our late Act must prevail, unless there have been, not merelj^ a deter- luination of the oi'iginal will, and a mere continuance in possession on sufferance, but some exideuce from which it can fairly be held that a new tenancy at will was created k'tween them " (./■). " The (juestion of a subsequent determination of the oiij;inal tenancy is only relevant so far as it may have been prcliniinary to the creation of a fresh tenancy at will after the determination of the first, and within the period of limitation. In any other view such a determination of the original tenancy after the end of the first year is per se irrelevant. When there is an alternative given by the Statute sufficient to set it running it would be inconsistent with its purjjose to allow the running to be stopped by the happening of that which, if time had not been running, would in itself have set it running. The actual subsequent determination of the tenancy could only have the effect of making the tenant for all purposes, when he was already, t'lom the end of the first year, for the purposes of the bar of the Statute — a tenant at sufferance " (y). (..;) Hafrarty, C.J., in KefTcr v. Keffer, 27 U. C. C. P. 28S (1S77). Sfe a!so ,/). f(i|- judgment of Gwynne, J., and c;isos cited therein Se'' Doe v. Carter, !i t^. 15. 803, D(;e v. I'umer, 7 M. & W. 22t), d.itermination after one year, startintr point of statute ; Randall v. Stevens, 2 E. & B. Oil, resumption if iKissessKiii after being turned out ; Allen v. England, 3 F. & F. 4;», new starting i)oints. ('/) Day V. Day, L. R. 3 P. C. 761 (1871). For cases on determination of t'nancy_at will, .nr Peacock v. Peacock, 10 Ves. 57, Lightcm v. Tlieed, 1 Ld. Kaym. 707. determination by one party at time prejudicial to other ; Doe v. lurner, 7 M. & W. 22l», entry and acts of user by landlord ; Ball v. CuUe- more, 2 C. M. & R. 120, feoffment; Daniels v. Davidson, 16 Ves. 252, agree- nv nt for sale ; Doe v. Price, i) Bing. 35(5, letter from owner to tenant ; Pinhorn V. Soiistpr, 8 Exch. 763, tenant can only determine by notice ; Doe v. Thomas, 'i lAch. 854, insolvent debtor ; Hogan v. Hand, 9 W. R. 673, effect of lease to tliird fserson. H.R.P.S.— 26 h 402 ItEAL PROPERTY yTATUTEH. [U. S. 0. !* v^ IHL i^ ■I r i f 0] Spr Tenancy at will or tenancy for life: — In Ruaa v. Krondtetn {z), the application of tlie statute depended on tlie intci'i)retation of an agreement between R. and ]\Ii.s. H. to this eH'ect : " It is a<^ree (c), John C, tjie owner, placed his brother Ja.s. C. in possession about the year 18o4. The defendant and his wife (the daughter of Jas. C.) went, in 18G7, at the instance of John C, to live with Jas. C. Jolm (.-.) l-J O. K. ::();{ (Lssc). Caiueron, C.J. («) The decision was in favour of a life tenancy. (6) 46U. C. R. 27'J(1SS1). (c) 45 U. C. R. 502 (i^si). IV , Cap. 111.] OCCUPATION OF CESTUI QUE TRUST, 403 C. died in 1874, devising to plaintiff; Ja.s. C. died in 1874, aiul his wife a year later. The defendant and wife continued in possession, and claimed to resist ejectment lirout,dit by the plaintiff in 1879. Hagarty, C.J., held that the defendant was never tenant to John C. during the life- time of Jas. C. and his widow, and that therefore the statute would not run in his favour until a year from the widow's death {(I). 6, (f<) No mortgagor or cestid que trust shall be deemed to be Case of ,1 tciKint-iit-will within the meaning of the next preceding sub- mortgagor sictiiiii to his mortgagee or trustee. or ceiitni qite tranl. Ohji'd of subsection S: — A mortgagor, or cestui que irmf in possession, was, for some purposes, treated in the courts of law as a tenant {e), and the object of the present sul)-section was to prevent ex majore cautela such an interpretation of his possession from barring the title of Lis iiiortirai[)iiiion of cestui que trust : — The doctrine that a coAid que trust, who is in possession with the consent or even the mere ac([uiescence of the trustee, must be regarded ;is his tenant at will, applies only to the case where the ii'atuA (I lie trust is the actual occupant (/). Eft'ct of subsection S ds to trusts : — The present sub- section " is equivalent to saying that the right of entry of ;i trustee against his cestui que trust shall not be deemed to have accrued at the expiration of one year next after the commencement of the tenancy " ( >\ t I" ' 1 '\ t' K f f" I" :*!!i ) t^^TO * 404 UKAL PROPERTY STATUTES. [W. S. 0. Express trusts are meant : — See Doe v. Rock (h). But position of cestui que trust may he 2>resumf'il .—In Ee Defoe (i), tlie tenant at will, being one of thu Ijune- ticiaries nndor the will of the owner (his father), who devised the property in question to trustees, it was pre- sumed that he had accepted the interest under the will, and the pivsent section was brought to Ijear. Ill c'ast> of forfeiturt' or breach of condition. Inij). Act, 3- 4 Win. IV. c. 27, s. 3. Where ad- Viintag'e of forfeiture i.s not taken by reinainder- inan,lie(shun have a new ripiit when his estate conies into iiossession. nip. Act, 3-4 Win. IV. 8. ('J) Where the person claiming such hind or rent, (jr the per.son tlirouph whfiin he claims, has become entitled, by niisfin of any forfeiture or breach of condition, then such ri>;ht shall lit- deemed to have first accrued when .such forfeiture was incurred or such condition broken, 6. (10) Where any riprht to make an entry or distress, or tn bring an action to recover any land or rent, bj* reason of ai y forfeiture or breach of condition has first accrued in respect of any estate or interest in reversion or remainder, and the lanij or rent has not been recovered by virtue of such riurlit, thf riifht to make an entry or distress, or to brinj^f an action torecoviT such land or rent, shall be deemed to have first accrued in res])ect of such estate or interest at the time when tin- "Mv became an estate or interest in possession as if no such forfeitiiri- or breach of condition had haiipeiied. c. -27. s. 4. Sah-sccfion 10 re-enacts the old law : — Sec Kemji v. West brook (j). "Forfeiture or breach of condition" : — "I think that the true way of reading the statute is to give the words ' forfeiture ' and ' breach of condition ' their largest sense, and to make them apply whether the forfeiture gives a right to an estate under a conditional limitation or wliether it is a true forfeiture at law, which can only be taken advantage of by the heir " (/•). {■'') 4 M. & G. 32 (1842), case of agreement to purchase; cf. S: Thompson, 22 Cli. D. 014 (1883), case of satisfied mortgage. But nO' mond V. 8ant, L. R. (5 (J. B. 7(}3, agreement for lease. (0 2 0. E. (523(1882). (i) 1 Ves. Sen. 278 (1740) ; cf. Doe v. Blakeway, 5 C. & V. 563; Doe v. Danvers, 7 East, 299. {k) Jessel, AI.R., in Astley v. Earl of Essex, L. R. IS Eq.2H0 (1874.) and- til iJriiiii- 'V i'^,. 111.] RKMAINDERMAS-TEXAXT Foil LIFE. 40.-) Fiii'fcitiu'e undara le((sc : — "It is to be observotl, tilso, that the statute speaks not only of the i-ight of action, but of the riglit of entry, and in truth where the chiini is to the possession of land, the real ri;;ht is the ri<,'ht of entry, ami the ri},dit of action is only "jjiven to enforce the ri|i;ht of entry. . . . The real right being the right of entiy, when (lid that right accrue i Not on demand or notice, for no demand or notice is necessary ; and not on the entry itself, for the entry is in assertion of the pre-existing n;rht"(/). Iiii|». Act. .'MWm. IV. c. 27. s. 3. 5. (U) Where the eatiito or interest claimol is an estate or Incase of fu interest in reversion or remainder, or other future estate or ''"'■'' estates interest, and no person has (obtained the pissession or reeeipt iif t!ie (irotits of such land, or the receipt of such rent, in respect of Mich estate or interest, then such rigiit shall lie deemed to have first accrued at the time at wliich such estate or interest became an estate or intei est in possession. 5. (12) A right to make an entry or a distress, or to bring an Provisions iijtion to recover any land or i-ent, shall be deemed to have J'''" ^^'^^' "' 1 • ^ c - .. ■ .. ^ • future es- ^.r^t iiocrued, in resi)ect ot an estate or mterest in reversion or ,. ,. i rt-ni.iinder, or other future estate or interest, at the time at Act, 3-4 Will. IV. ( 27, s. -) ; ;{7-38 V. 0. r.7, s. 2. which the same became an estate or interest in ])ossession, by tile (letcnuiuation of any estate fir estates in respect of whicii >:ich laud has been held, or the profits thereof or such rent have li-eu recrived notwithstanding that the person claiming such Kind or rent, or some person through whom h(( claims, has, at any time iireviously to the creation of the estate or estates which liave determined, been in the possession or receipt of the prutits of such land, or in re-ceipt of such rent. R. .S. O. 1S77, e. 11)8, s. :,. RciiKiinderman ; tenant for life: — The Statute of Limitations will not begin to run against a remainderman until the death of the tenant for life (v/t). " The propo- •sition that time can never be said to run against a < i i I* (0 (iiovernors of Maordalen Hospital v. Knotts, S Cli. I). 727 (187H), case of voidal)li> lease. S<:c further Doe v. Bliss, 4 Taunt. 725, Mtvoher v. Foundling Hiispital, 1 Ves. & B., as to fresh rights of re-entry on fresh defaults ; Cosbie V. Sugrue, "J Ir. L. R. 17, as to law in Ireland. (w) Adanison v. Adamson, 12 S. C. R. .')63 (188G). Sec also Young v. -MKlland K. W. Co. 16 O. R. 740 (1889), case of reversion in the comiwnsation fur land taken by railway; Shaw v. Shaw 8 U. C. C. P. 273 (1859). i*l 406 REAL riWI'KltTV STATL'TES. [R. a. 0. ;:',. if ' reinaindernmn, so long as a toiinnt for life uiulor the same will or settlement is in posHossion, which in, in ofU'ot, the present case, seems so plain that scarcely any authority is called for ... In short, the statute has no applica- tion except so long as the title and pos.session are separate, when the possession is in the rightful owner Statuti-.s of Limitation are not re(iuired"(n). Remainderman; tenant in tail; — The cases in 12 C. B. (o) shew that the statute did not begin to run a^iuinst the contestant until his father died, which is said to iiiivc been about the year 18G2 ; that * though there is a ditlicultv in understanding why in principle such a distinction .shoiiM exist,' still the statute did make a distinction between a case where a tenant in tail should voluntarily abandon his interest during his life and remain out of possession for [twenty] years, and a case where he should convey his interest and thereby put it out of his power to make an entry or bring an action ; that in the former case the issue w^as barred ; and that in the latter (which is the present) case, time was not to run against the issue until the death of the tenant in tail " (p). Equitable remainderman ; — The same rules apply to an equitable owner in remainder as to a legal, under the statute. The equitable owner is, notwithstandino- the Judicature Act, compelled to proceed against a trcspassei' in the name of the trustee of the legal estate but the Court would restrain the party in possession from setting up the statutory bar against the trustee except so far as it applied to the equitable title (q). (n) Gray v. Richford, 2 S. C. R. 455 (1878). per Strong, J. Srr Paino v. .Tones, L. R. 18 Eq. 320 (1874), ca.se of i)osafsHion by tenant for life agam- roinainderman. (o) Cannon v. Rimington, pp. 1 & 14 ; Riniington v. Cinnon, pp. 18 & 3.^ (1S53) (p) Mowat, V.C. in Re Shaver, 3 Chy. Ch. 381 (1871). {(/) Adamson v. Adamson, at 7 A. R. 612, per Burton, J. A. Cav. Ill] REM^lNT^KR^TAX-TEIiANT OUT <>F POSSKSSfoy. 407 RemxindeniiPn ; where Mtatnte runnlvfj in test((f(>r',s lifi'iiiii'' : — "The statute liuvini; Im'i^miu to run in tlie life- time of tlie testator, it is well scttltMl, and beyond the mvch of controversy, that the phiintitl" is not entitled to the protection accorded by the statute to i-eniaindernien, reversioners and other owners of futuiv estates, as he would have been if the statute had only cotninenced to run after the testator's death " (r). 6. (1) If the jxTsnu last entitled to any particular estate on Time limit- whicli liny future estate or interest was expeetiint lias not Iw^en '''' '*■** *" '"" • .. f ^1 Li^ e I t I ■ ture estates Ml tlie iMissessiim or receipt ot the protits of such land, lU' III ^vlien i>*'rs(m receipt of such rent, nt the time when his interest determined, entitled tn nn mich entry or distress shall he maiicli aetU'U, to recover sucli land or rent. » ^ S^-SS V. c..57,"s. 2. out of pos- session, etc. Imp. Act .•{7-;w V. c. i>7, s. 2. \yhen tin- right to an estate in jK)ssession is ['M Where the right of any person to make .an entry or dwlrt'ss, or to bring .an action to recover any land or rent towliich he has been entitled for an estate or interest iij pos- ^es^illn. has been barred by the determination of the i)eriod barred, the liereinlx'fore limited, which is api)licable in such case, and such right of the l>erson has, at any time during the said period, been entitled to **a"if^ 1*""'"^ , . ? , ., .,. . . to future es- .iny other e.state, interest, right or possibility, in reversion, tates shall rem.iinder or otherwise, in or to the same land or rent, no entry, also be bar- distress or action shall be made or brought by such i)erson, or f^d. I'"I'- any (jerson claiming through him, to recover such land or rent ^y^^J jy ^ in respect of such other estate, interest, right or possibility, 27 s. 20. (r) Gray v. Richford, 2 S. C. R. 453 (1878), per Strong, T. 1^ ■ K m 408 J,'/:.\L I'llorEliTY STATCTES. [1!..S. (). m f-iV S' •! 1 uiili'-i.s in till' iiicaiitinic such land or rent liiis l>i'(;n rccDvcrcil hy SdUK' person entitlcil to an estate, intert'st or rij^'lit wliicli has been limited or taken etfeut after or in defeasance of suuli estate or interest in possession. K. S. O. 1S77, c. luK, s. (i. " Old of possession " ; — " TIr' clansc in ([Uostioii plainly Jipplies to a case in which the person entitled is out oi possession, i.e. where the rigiit to possession and the iictual j)osse;.sion are separated ; in such cases a cause (jf action accrues to the owner of the particular estate and on its cesser another cause of action accrues to the owner of tlie remainder, and the two periods mentioned in tlie enact- ment run respectively from the accruing of these riyhts ot action " (.s*). Ana< if there had been no interval of time between the deatli of without in- nuch deceased person and the grant of the letters of adiiiinistia- terval after ..; .,, i> u i\ -lu — - ,, kio . - J ,, , , tion. 1\. r>. U. ]?(<, c. lUo, s. ,. death of de- ceaseh en ^oii [( ). Applicdiimi of fills seetlon: — It has been hel,. I). .-.70 (18H7). (0 2 Salk. 421. Citing Stanford's ease, Cro. .Tae. 01. ((() Bf Honsor and .Smith'H contract, cited in Ri Williams, Davies v. Williams, 34 Cli. D. .-.GO (ISSO). Cap. 111. J KLEMEMS OF PROPER EA'TRY. 409 whieli li;vs iuoli (■state 8. No iii'i'son sliiiH lic (Icfiiicd to liiivf liccii in possession of A mcri' tn- nnyliiii'l witliiii tlic nuiuiin^' of this Act, nuTcly liy rfasun of ti'y not to bo liaving iMii.l.: an fntry tlicruun. K. S. O. 18, <, c. I0>s, .-<. S. .s^s.sion. Idem. s. 10. Elements of a jifoper entry : — " J., as devisoc of R., ;ui>l ill assertion of liis title in fee, resumed po.ssession of the premises in 7'.'). Cf. al<(i, Worssam v. V'andenbrande, 111 W. H. ."i.'l, erection of fence, l)oe v. Cumbi's, !) C. 15. 714, where removal ." [xirtion of fence, etc., held nut sutticient disturbance of defendant's [jossession. (.«•) Gait, .1., in Great Western Ky. Co. v. Lutz, 32 V. C. C. P IG'J (1881). *, 410 REAL PROPERTY STATUTES. [R. .S. 0. Continual clalvi : — So called because at tlie common law it must have been made within every year and a day {ii). It consisted of an actual entry ; a mere demand, without process or acknowledgment, having no force against the Statute of Limitations {z). No descent, warranty, etc., to bar a right of entry or ixction. likvi. a. 3!t. 10. No de.'icent cast, discontinuance or warranty, which li»s happened or been made since tlie first day of July, 1S34, or which may hereafter hapixui or be made, shall toll or defeat any right of entry or action for the recovery of land. R. .S. O, 1S77, c. 108, s. 10." Right of entry tolled by descent cast ; — " In cases of aliatement, intrusion, or disseisin, where entries are gener- ally lawful, this right of entry may be tolled, that is taken away by descent. Descents, which take away entries, are when any one, seised by any means wliatsoever of the inheritance of a corporeal hereditament, dies, wherein' the .•'). Ejle^t of thi'< sab-i^ection on ri(/ht,s of tenant'^ iv com- mon, etc.; — "The etiect of this section, so far as relates to the objects of the Act, is to make the possessions of the tenants in common separate and ^2) ik-r Burton, .T.A. Cf. CuUey v. 1*'"'. 11 Ad. & Ell. lOOS; Doe v. Horrocks, 1 Car. & K. 13(i ; OSuUivan v. •McSwiney, 1 Long. & T. 119. m V-: u^ ^^W ■ ■ i'-v i, ' '^'ilHI w #!?i 412 MEAL PROPERTY STATUTES. [R.S.O. not in possession, tlie tenants enterini^ are in the position of mere strangers, nor could the tenants out of possession be affected by notice to those in possession {g). The result of the statute is that one of several tenants in common one day before the expiration of the statutory period, might make an entry or bring an action which would preserve his right. But on the following day the title of all the other co-tenants would be extinguished (/t). Point of time from ivhich this subsection operates:— Where a testator devised to three sons as tenants in connnon of land as to one-third of whiclx there was a preceding life estate, and two of the sons exclusively occupied each one of the other thirds. U., the third son found himself entitled only to one-third of the third which had been subject to the life estate. As expressed by Draper, C.J.— " This enactment operates back by relation, from the tirst connnencement of the separate possession ; consecjuently U. was put to his right of entry by A.'s taking the entirety of one part, and J. the entirety of another part ... as to to which parts there was no intermediate estate for life created. The statute be^'an to run aifainst him as soon as the disability of nonage was removed " (i). Distinction beticeen occupation of trespafiser unil '<''paratc Occupation of tenant in common: — "As to the defendant being oidy in possession of the land he actually occupied, so as to bring the case within the decision of Do<' Hill V. Gander {j) there is an obvious distinction. In that case the defendant had got part of the plaintiff's land as a trespasser without title. His title by [twenty] years' (sion was, therefore, liniitetl to the land lie actually occupied. But here the defenilaut was a tenant in common of the whole lot. . . . He had title to an undivided part of every part of it, and when he entered into posses- sion, he must he taken to be in possession of all to which his I'iu'ht of possession would extend" (/^K Adult and infant co-oicner.'i : — In liohhs v. WoAe (I) a father was, during the statutory period, in receipt of the rents of a property of which one undivided share V)eloniied to an infant child and the other to an adult child ; the adiilt was helil barred, while the father was treated as bailitt for the infant. 2) iKiiit ill common out of i)os.srssluii iicquiriuij iiifcirst of oar in possession : — Where there are several tenants in coinnum of land, of whom all but one are in possession, and before the ten years have run the latter acquires another undivided share from under one of those in possession, the statute runs as to both shares from the time the last one was aci[uired {U). A v'wvjiful 2'>osscssion hy two persons nit ikes them joint tciidnls: — " Here two persons are in lawful possession : . . the title under which they hold it comes to an end, but they continue in possession, and thus i>o on holdin<,^ a certain share of the property without any title whate\er. In what capacity do they so hold on :* It appears to me as joint tenants. The possession of each ])ecame wrongful as to his share at the .same moment of time, so that they aciniirt'd their title at the same moment of time, they held }^ ik) MovfTs V. Df.yle, 9 I'. C. C. P. '^7r, (IStiO). Cf. Muri.hv v. Murpliv, 11 Ir. C. L: U. -jor,. '/I :n. ■-■ ' ■ r )fits of .iny land, or to the rt'Ctipt of any rent, enters lu' > the i ..oession or receijit tliereof, such l)iis.~^c-siiin iir receipt shall nut h- licei ^hcI to he tlle posses-ioii or receipt of iir liy the persons entitled as iieirs. It, S. 0. 1877, c. lOS, s. 1-2. Occupation by widow of owner: — In Jolm-^uit v, Olirer (a), the widow was in occupation to the e.\chi>ioii of the heirs-at-law, and there beinu' no evidence of iiiiv agreement by which she held qua doicriSK, the title of the heirs-at-law was barred. " It seems anomalous that if the (,n) Ward v. Ward. L. K. li Ch. 7.Mt (1S71). Cf. I'.ollinp v. llnlidiv. SI W. K. '.», Williams v. Williams, L. K. 2 Ch. 2'M. As a wrongful posse-M-.n w not an assurance of any sort, section '20 of cliaptcr lOS will not attVct this creation of joint tenancies. (») Sanders v. Sanders, 19 Cli. 1). 373(1881). ((') 2 Phil. 127 (184(5), mere occiii)ation without exclusion make s no lir.liility. (j>) 3;> Ijeav. 't'.U (1S{))), occupation rent, in ))arlition action. >" :il--'' I'ascoe V. Swan, 27 ]3eav. oOi> (Ibo'.l). ((/) 15 Q. B. D. GO (1881), co-tenant over-hohlin,!? after expired Ua.-e 1 y other co-tenant. (r) 14 Ch. D. 192 (1880), removal of obstruction erected by one cc-tiiiuu:. {ft) 2 Phil. 308 (1847), one co-tenant acting as executor of other. ' (0 44 Ch. D. 140 (1S90), right of contribution. (II) 3 O. R. 2fJ (1883). (•ipjll. ] OLVri'ATlOy BY VATHElt. 415 widow had been proceeded afjjainst by the heirs-at-la\v hefore their title was extinguished for an account of the rents and profits of the Uind received by her, she would have l)een entitled to retain one third of the rents and jirotits as having been received by her qaa ilowress, and vet durino- all the time during which these rents and protits were accruing her possession of the land was ripen- ing; into a title luider the Real Property Limitation Act on the ground that she was in possession not as dowress but jis a wrong-doer. But the Real Property Limitation Act (•iinnot l>e thus evaded, iov the right of tiie heirs-at-law to hriun' an action against the widow to recover the said land accrued to them upon the death of Charles l\oss and it would have been no answer by her to such action that she was entitled to dower in the said land " (';). (}(■<■ II i^hd Ion Irij flit he r : — See Re Hohhs^ Ilohbs v. I'uri'i'spoiidiiKj scctioit in the Imperial Act: — Our section is adopted from the Lnperial Act, which particu- larly specities the possession of a " younger brother," a term which in Ontario, since the abolition of primogeniture, has lost much of its meaning. An explanation of the Imperial section will be found in Jones v. Jones (,t'). Ackuiw- It'dfriiiiiit in writitiLT Kivfii to till.' 13. WluTf iiiiy auknowli'dgi'iuent of tlio title of the perrsnu tntitlcil tt) any land or ivnt has been g-ivcu to iiim or to liis agi'Ut in writiiijir, sipntvl by tlic i«'r.son in po.ssL'ssion or in receipt of tlit- lii'utits iif >\ich land, or in tlio receipt of .such rent, such pos.si'ssion r„.i-s,in t oi'ricii|it of or by the person by whom such ackno\vle(l{?uient was titled or his Rivtn .sluiU be deemed according to the meaning of thi.s Act to 'i"*^''.'t' *" ''e 1,,.. 1 .1 • • ^ r 1 ^1 i 1 e(iuivalt lit liavf licin the possession or receipt of or by the perst)n to wiuui ,,' ,, or tu wiidsc agent such acknowledgment was given at the time of sion or ic- (.'iviiip the same, and the right of such last mentioned person, or ceipt wf uf luiy person claiming through him, to make an entry or di.stress '"'^■"^' (>•) I'', tier Armour, J., citing McDonald v. Mcintosh, 8 U. C. \X. ;;ss ; Uucli V. Sliaw, 8 Gr. 4!t4 ; Laidlaw v. .Tacken, 27 Or. 101 ; Fraser v. Gui.ii, L'7 Gr. 03. Cf. Doe v. Long, l» C. & P. 773 ; Doe v. Lawley, 13 Q. B. ,'ni<.'nts, if mure than one, was given. R. S. O. 1877, c lOH, s. 13. GcDifiil ('ifcct of written (ickiif>u'!('(h/mevt : — "An acknowledginout of title in writino- makes the possession of the person making the acknowledgment the pos.session of the person to whom it is made" {>/). Oijcv l>u party in 2^ossession to piircliUHe from owiw,': — An agreement by the person in possession to purchase the land from the rightful owner is .i sufficient acknow- ledgement {z). So too an un.[ualiHed oft'er to purchase ; thus, where the defendant recjuested a person to write to the plaintiff's agent, oftei-ing to purchase the land (which otter fell thi'ough) ; and after the action was commcnpcd made another otter, the Court considered that these oft'ers. unaccompanied as they were by any denial of the plaintiffs title, were sufficient to warrant a jury in finding for the plaintirt'((/). Again, it was hold a clear recognition of the plaintitt''s title where the occupant made an otter to pur- chase and a payment on account (6). Offer after statutory 'period not equivalent to achioir- ledge me lit : — "It was urged that the defendant's offer to the plaintift' of 1?100, if he would give him a warranty deed, was such an admission of title tliat it removed the statu- tory bar of prescription. It is manifest the offer can have no such ettect. The paper title which the defendant wanteil may ])e worth to him $100, although he has a perfect titlf by the statute. The title would be more marketahle if a paper title could be shown. The defendant did not by hi> (U) C'ahuac v. Cochrane, 41 U. C. R. 430, (1877). (i) Caliuac V. Cochrane, 41 U. C. R. 4.H11 (1877). ('() Peiilington v. Brownlee, 28 U. C. R. 18!) (1868). Cf. Dublin v. .TudfTf. U Ir. L. K. 0, proposal for lease ; also, Doe v. Emonds, G M. & W. ■.".t"i (184tii. as to qualified acceptance of proposal for lea.se. (b) Doe Boulton v. Walker, 8 U. C. R. ;"-' (1852). Jf^ [K.s.n. ae deemeti vhicli such ts, if mure — " An ession oi' ession of I oivni'i". purchaHf , acknow- puvcluise ; write to nd (which nmnenceil \ese otters. ; phiintilfV nrr for tb- lion of tlie er to pur- |(> acHou-- "s otter t'l ^auty ileed. tl\e statu- |r can have a^t wanteil lerfoct title ftable if ^ not by his Llin V. .T>i'l?*'. Call. 111. WIUTTEN ACKNOWLEDdMENT BINDINi' offer hy occupant umJer imperfect paper title : — All uH'er by the occupant, who has no claim to a paper title, to buy the land fx-om the ownei", is to be distinguished from " the case of a party who, being in possession under an imperfect title, or at least under some claim of right has endeavoured to strengthen his title by getting in some outstanding claim. In such cases it would not be fair to infer that he intended to acknowledge the right of the party to dispossess him if he pleased, if he declined to contirm his title ■'((/). Wr'tttcn aeJ:.noicleysi:.\T. 419 vendee had ;,^one into pos.se.ssion as an intendin<; pmcliasor liet'ore the '-'ritten contract was executed, such pixsse.ssion coiitinuinj^ for more than the statutory perioil. The written contract, liowevor, contained a stipulation that the vendor would convey to the vendee at a certain Futuve date if tiie vendee had then made all his payments, and it was contended that this was an acknowled<;'ment of title in the vendor up to that date. The court, however, decided d'ainst this contention and decided also that the vendee was a tenant-at-will, and that the statute bei^-an to run at the end of one year from the execution of the contr ict. h'shippel hy consent to a conceijavce : — The; acknow- led'Oiient under this section must be carefully distin^'-uished t'roui an estoppel which may be by conduct aud not evidenced by writing. Thus the occupant of land assent- in;,' to a conveyance of the same even thou<,di ho does not execute the deed of conveyance is precluded from asserting that the deed did not convey the possession it purpoi-tcd to convey and from setting up any possession in himself prior to sncli deed (k). Extoppd hy consent to a mortfjaffe : — The convts^-ance to which the occupant assents may be a mortgage, in which case the right of the mortgagee does not accrue, or tin; statnte run, until after the making of the mortgage (7)- Draft deed as evidence : — Another instance of a writing tliat need not be signed by the party in possession to be ailinissible as evidence, occurs in McQiu'cn v. Mdlncci) (ni), where a copy or draft of a lease was produced in the occupant's own handwunting though not signed by him an), where deed dated more than 20 years back, but executed sino'. (?) Boys V. Wood, 39 U. C..R. 495 (1876). ("')10U. C. K. 193(18i53). h. iU ri-i 420 liKAL fnol'EUTY STATUTES. [U.S.O, la fj of (leknowledijinenl 'nuittcr dJ law urj'urt! — See Due v. KdmondH (/(). Kt'ct'iittof I't'iit to 1m'(U'H1IH'(1 n'ctMi)t i)f IirotitH. nil). Aiit, 3-4 W. IV., c. 27, H. 35. At the end 14. The rccnipt of the rt'iit ]iiiyal>li' liy any ti'iiant from year to yt'ar, or other leswee, uliall, aw a^ainHt hucIi lesHcf or any iit-r- Non claiming nnder him but Hiilgcet to the lease, lie (IcciiumI tul,,. the receipt of the jirotitf* f)f tlie hmd for the i>urpo«e» of thi.s Act. R. S. O. 1877, c. 1(W, .s. 14. IS. At the (lotenniiiation of the period limited by thin Act of the period to any jierson for Tiiakinj? an entry or distress, or brin(,'int,' any the riifiit of fi'''ti"'i> tiie ri).'ht and title of such person to tiie land (jr rent, fur the recover}' whereof Huoh entry, distress, or action res|)eoti\t!y might ha\'e been made or brotight within such pi'rind sliall Ic- extinguislied. U. S. O. 1877, c. lOS, s. ir>. the party out of pos- session to be exting\iished Imp. Act, 3-4 W. IV., c. 27, s. 34. Not rtierely is claim barred, hut title isextin(/ui>^he(h— " Under the Statute of Limitation.s (3 & 4 Will. IV., c. 27),;is regards ival ])ropert}', the ease is quite ditierent, the title itself is extiniL'uish(.Ml, and the right of action ^vh^ll\ disappeai's. That is not a har oi' the chiiin, it is a (Hvestiiii; of title or a transfer of title to soniebod}- else "(o). Effect of sidjseqiient eiitrij Ini thf 'p('i'>^on hawed : — " Tlii' very point came before Lord Selborne, sitting lor thr Master of the Rolls, in Brtjan v. Coirdal, 21 W. R. 69:] He there held that a person who suft'ered the statute to run bef(M-e he asserted his right of entry, could not, by getting; po.ssession of the property, revive his title to it ; for the Act had barred his estate and he was in as a mere trespasser. 1" the same effect is Sanders v. Sanders, L. R. 19 Ch. 1). •'iT-'J'i ['i ()() M. & W. 2i»5 (1840), a question for court. Vint iw also Mnrri'll v. Frith, ;{ M. & W. 402(1838), if doubtful document explained by extrinsic facts these are for jury ; also Incorporated Society v. Richards, 1 Dr. & ^^ ar- '-'"'• 2!)0 (1841) where' Sngden, L.C., says: "The question is one for a jury, aw would be thus put to a jury,— do the letters amount to an acknowledgment ul title witiiin the statute?" (o) .Tcssel, M.R., in Dawkins v. Penrhyn, 6 Chy. D. 322 (1S7; holdiiK' that such transfer of title by statute is a good ground of demurrer. ' !^\^^' j,' 4 App. .'(1. Sc' Incorporated Society v. Richards, 1 Dr. & War. -i^'J; '' Ali.son, 11 Chy. D. 2!)G. (;)) Boyd, C, in Court v. Walsh, 1 O. R. 170(1882); Cf. Bras^-ington v Llewellyn, 27 L. J. Ex. 2'J7. ^ i [li. a. u. • or liirt ! lit frtiin yi'nr ■ or any ikt- llccIMI'd tnlii- Sllf tlii^ Act. 1 liy this Ac» briiiy;iiiK' iiny id III' rent, f'lr I resiH't'tiMly eriiKl shall Ix- v.. c. 27), as :it, the title iou \vl\oUy a divesting 0). rr/.— "Thv in- for tlif \V. R. 693. tute to run \iy oottiu': for the Act Ipassor. 1" l).;n:V'(l*i I extriiisiL' fMt^ l)r. & NVar. 'i''^- Ifor a jin'v- f (1877), hoWi"!; V,.r >Vc L. K. War. •Jt^y- '•' Brassington ' Ca^lll.J .v.i/rA'A' '>/•■ /AT/;/.' /•;>"/' a>(j( //;/■:/>. 421 i'li'/iiiiiit ur (i(;knmvl('jin>'iit (iffrr jvrinil :—^ot oven a siiUst'ijueiit payment of rent or acknowluilijniont will restore the title wliich has boon extin^^ui.sheil by the stiituti' (7). Xiiluff of interests barred: — See Sands to Tko]}q)8on yn, H"ll . lh>l)divseription — in other words, the Statute operates to har the riglit ol' the owner out of po.ssession, not to confer title Mil the trespasser or disseisor in po.ssession. From first to htst the Statute of 4 Wm. IV. says not one wonl as to tlie acniisition of title by lenj^th of possession, thou<^h it does say that tho title of the owner out of possession should be •.xtiii<,niished, in which it ditiers from the Statute of James, which onl' ri'cd the remedy by action ; but its operation is liy \va\ tiiiguishment of title only "(0- rill' nature of the interest acquired by possessitin has lately come under- discu.ssion in Tickhorne v. Wi<;r [u), in which a lessee having been out of po.ssession (hiring the statutniy period, it was sought to render the stranger ill pi)ssession liable to the lessor on the ground that the statute transferred the les.see's rii^hts and liabilities as iin'.iiust the lamllord to the stranger in possession. Lord Justice Bowen says : — " It seems to me that the statute did not transfer anything. Section 34 of 3 & 4 Will. IV. c. 27, I'l) ;Ttss(-l, M.R., in Sanders v. Sanders, 1!) Chy. I). 373 (ISSl), case of ;-n;uit ill cDtninon. As to acknowledgment, vi'i- Markwick v. Hardinghani, I'' Cli, D. 33!J (18.S0) ; Lyell v. "Kennedy, IS Q. B. 1). 7'.tC.. (r) 22 Chy. D. G14 (1883), outstanding legal e.state in mortgagee. (-') 31 W. R. !) (1882), trusts extinguished along with legal estate of Tistee.s, (0 Gray v. Richford, 2 S. C. R. 454 (1878), per Strung, J. (») 18U3, 4 R. 2!). ^ ■ '»; t m .■■ I *' ^ ^ ■i ' 1 422 iJ£:^i PROPERTY STATUTES. [R. s. 0. merely states that the right and title shall be extingnished. It was argued that the effect of extinguishing the title of the termor was to transfer the term with all rights ami lial)ilitles to the person in possession. The whole arguiiii'ut is based upon an overstraining of certain expressions used by Lord St. Leonards in Incorporated Sociefif v. Rieharda (v), and of Baron Parke in Doe d. Jakes v. Samner {iv). But those passages were never intended to apply to the case of a lease. The effect of extinguishing the title of the one person, is to place in the liands of the person in pf),sses- sion the power of resistance, and in that sense he holds by a title under the statute, but not by a parliamentary conveyance. It seems to me that the operation of the section is accurately and guardedl}' expressed in 1 Dart's Vendors' and Purchasers'" 6th Ed. 463: ' Possession for u time exceeding the statutory limit notonl^Hjars the remedy but also extinguishes the right of the original owner. It has been said that the effect of the Act is to make a parliamentary convej'ance of the land to the person in possession, after the statutory period has elapsed : I'Ut though it is true that the possessory owner after the statu- tory period has been passed, is placed b}' the Act in a po.sition analogous to that which he would have occupied if the fee simple had been absolutely conveyed to him, yi t his title under the Act is acquired .solely by the extincti'ii of the right of the prior rightful (jwner, not l)y any stati- tory transfer of the estate. If the statute opcrateil as i sort of involuntary alienation of the estate of the rii,'litt'u! owner, the adverse possessor would take it subject tn tlu subsisting charges : and wherever it was in settloiuent hi- interest therein would constantly V)e varying acconlinj,' t > the succe.sisive limitations of the settlement: Imt this i^ clearly not tlie operation of the statute.' " (i) 1 Dr. .^ War. 258, 2S<). (»•) It M. * W. 3!1, 4'.', when- I'.*i-ke, R. spraks of tlif cff.'ct of tlif .V't;^ " !V pai'liaineiitiiry cumeyaiu'e." Cap. 111.] SrCVESSlVK TJtK.SPA.SSEli.i. 423 SiiccesHive trespassers ; in irririiu : — " I take it as clearly established that possession is ii. He cannot make an entry upon himself, '{'here is iiK ])()sitive enactment, nor is there any principle (»f law which re(|uires him to do an}' act. to i.ssue any notice, or to ]iirfi>iiu any ceremony in oriler to rehal)ilitate himself. (.'■) .V.her V. Wliitlock, L. K. 1 (^ K 1, (i (lS(i.-.). Cf. Cliuk.' v. Clarko, 1. R. 1' C. L. ;V.i:( ; Ki'ife V. Kirby, Ir. C. L. R. .V,»l ; />- (':ut.r v. IJiiriuird, l:;'Mi. !l.V_>. (■') Hewitt on Limitations, at p, Kil, citing />■"' Carter v. IJarnanl, supra. f\ 424 REAL PROPERTY ST A TUTES. [R. s. 0. '-■»•■ ('.■' ml'' No new departure is necessary. The possession of t!ie intruder, ineti'ectual for the purpose of transfen-in;' title, ceases upon its abandonment to be effectual for any pur- pose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vaj^rant " {z). Successive independent trespasfters inter se : — " I take it as clearly established that po.ssession is good as again.st all the world except the pei-son who can shew a good title ; and it would be mischiev-ous to change this establisjied doctrine. In Doe v. Dyehalli^a.) one year's possession l)y the plaintiff was held good against a person who came am] turned him out ; and there are other authorities to tiie same effect. Suppose the person who originally inclosed the land had been expelled by the defendant, or the defendant had obtained possession without force, by simply walking in at the open door in the alisence of the then possessor, and were to say to him : ' You have no more title than I have ; my possession is as good as ycjuis': surely ejectment could have been maintained by the original possessor against the defendant " {})), Is title under this statute tnarkettdde ? — " ]\Iy impression is, that whenever the right is barred by time, a good title can be made : that the party in possession has the legal fee simple, an. Cas. 7'.M) (ISSS). Sa E.e p. Winder, C Ch. D. (i'.Ki, rif^ht.i of piirties wluTe liiinl tiinifil intu money. ('0 .M(i(m1. & M. :<4(i. (/-) Cockl.iiin, C.r., ill AsliiT V. Whitloek, L. R. 1 (i. li. .'. (ISi;.-)). I?iit ,Hff Dixon V. (JavfiTc, 17 IJimv. 421. Cf. Dot- v. Ctiuk, 7 liintf. 340; Due v. Martin, 1 Car. k -M. 32. ((•) Scott V. Xixon, 3 Drn & War. 3S8, 40.5 (1S43). Cf. Tuthill v. Rotfi-r^. <; Ir. Jv). R. 441 ; Letlibridgo v. Kirknian, 2o L. .F. <,>. B. S4. Xa. Cai.. 111.] AJilifARH OF REJST OR INTEREST. 425 previously a fi^ood title must have been proved by the vendor. There are exceptions to the bar by lapse of time, by reason of infancy, and other disaliilities " ((/). Plcadinii the statute: — The rule that the Statute of Frauds must bo pleaded has no analon;y to the case of the Statute of Limitation: " With regard to real property it is a (|uestion of title. . . ; If upon the face of the bill the plaiutirt" states that the period allowed by the statute has expired, he states in law that his title is extin<;'uished, unless indei'd he can brin;;' himself within some of the exceptions under whieli the statute allows his title to condnue " (c). I'or otlect of ])ossession under Land Titles Act, see IJ. S. (). 1SS7, c. 110, s. 27. .\HKKAIi3 OF DOWEU, RKNT .\N1) INTEREST. 16. N' 1 aiTcar.s of dower nor any damages on account of .such No arrcjirs .iiTeais, -^luil) be recovered or obtained bj'auy action for a longer "f dower to 1 .1 • ,. 1 f i.1 1. c 1 be recovered in'ruiil than six years next before the commencement of such r ' ■' tor more aetiiiii. K. S. O. 1877, c. 108, s. llJ. than six years. /(/(//(. S.41. There was no limitation in e(|uity to arrears of dower any more than at law without a special <;round(/). 17. \ii arrears of rent, or of interest in respect of any sum Xo arrears iif mom y eliarpxl ujion or payable out of any land or rent, <>r in "f •'•'"t <'•' in- resiiivt of any lemiey, or any damaws in respect of such arrears ' " "' " , "^ ' . r> .■ , .7 -, 1 recovered of rent or interest, shall be recovered by any distress, or acti-jn, f,„. mure but witliin six years next after the same respectively has become than six p'li', 111' next after any aoknowledKuuint of the same in writiuK' •X''"'"';' , ,,!'''• 1 , . , ' • , , 1 I • -1 Act. 1-4 \\ m. lias been given to the person entitled thereto or his ai,'i'nt, si^fiu'd j^- ^,_ .t~ iiy the person by wliom tlio same was payabli>, or his agent, s. 42. R. S. 0. 1S77, e. 1(»S, s. 17. Ai'i'cdr-'^ of rent: — So long as the relation of landlord anil tenant subsists as a le^'al relation, the landlord's rii^ht ti) rent is not barred by non-payment for however lonj.^ a time. The rioht to the rent is an incident to the reversion. The .Statute of Limitations does not apply except indeed '•') Lord Cami)bell. in Monlton v. Kdmonds, 1 1). F. & J. 2.")() (1H.V.>). (0 4 App. Cas. .V.)(1878). ( '■) Oli-.er V. Kichard.son, !) Ves. 222 (1803). ^^^ f f ■ * ' " ISI 1 ■ if* ■ ■:>lrar4 9' \h ■ f inu'il i!l •ill- i 11 ■ ;. 111,! ' ll ' ■ fP ■ ■ ' ' v' ' '" ' ■ ■; ■ 'i(; ■ K 1 1 . ',!', : i •ii ■1 »ri! ■ a;-^. i'^l idikiii It i ^ 'loUH i* ' '( f lit' ■^ '-''i'ltn tMi 11 m 426 /^AVJZ PIUH'i:iiTY STATUTES. [H..S.U. that by the present section it prevents the recovery of arrears for more than six years ((/). Section 17 refers es^pecially to reritst cltarrjeil on hiixl :~ In Paget v. Foleij (h) it was considered that tlie statute pertained more " to rents that are a charge on the land than to mere conventional rents"; in other words was nut meant to apply to rents reserved by a specialty. The object of the Act was to relieve land from arrears of charges beyond six years, but not to afiect the riglit to a personal action (i). Annuities : — In Sims v. Strdchan (j) it was held that arrears of an annuity secured by a covenant in an indenture might be recovered after six years. Annuities may come uiuler section .?•? infra: — Hee Hughes v. Coles ik). Personal annuity : — An annuity given by will, forniintr no charge upon land, but being personal only, is not within section 17 (0- Money payahle oat of Uiml : — Where the interest mort- gaged was the share of a married woman in the prdci-eds of lands devised upon trust for sale, that was held tn be " money payable out of land " (i/i). ('/) ArchboH V. Sculh-, it IT. Ti. C. 37J (18C1), j-o- Lord Cranwoitli. A- Webster v. Soiitli.^y. »J C'li. 1). I'.l (L^.N). (I,) -1 Biiig. X. S. (188 {183(i). ((•) llunU'r V. Xuckcilcls, 1 Mmo. v'v (J. (Ill (1S')0) ; .w Cox v. Dolirmn, 1 D. IM. & G. .VI2 (ISo-J). S,< K. S. »). ISST, c. (jO. s. 1 (1)((. "Acti'Hi.-s for unts iiluin an iiult'iiturt' of dt'iuisc." (.;') 1L> Ad. & Kll..'.:;t! (1840). Stc furth.r .Tames v. Salter, 3 Bin<:, X. C ■^'^t nstodisiiuteuf title to annuitv ; Wheeler v. Howi 11. 3 K. it J. IS'.l : .Simliur v. .I;\i.'k.soii. 17 I'.eav. 4..ii ^ Livingston. !• Ir. Eij. K. 2ic_'. (/) Koch V. Callen, (i Ha. .^Stl (1848). Cf. AV Asluvell, Johns. 112. (hi) liowyer v. Woodman, L. R. 3 Eq. 313 (1S()7). lint xf Smith v. Hill, !t Ch. I). 143 "(1878), and the cases there discussed. Sn al.si) folding v. hww; 4(;itf. ■.74. ■ titi Cai.. HI.] IXTIIHKST OX MOnTGAGES. 427 Interest on legacies charrjed on hind: — Wliere the leoacy is a simple cliai'fjfe on the land the seventeenth section applies (n): and in Thompson v. Eastwood (o) wliere the le^iicy was not merely char<^ed upon the land, but con- sidered an express trust {j)) the Court applied the principle of tlie Statute of Limitations to the case and allowed only six years' arrears. Time whence interest runs on legacy : — In a case where tiiere was no personal c>;itate to satisfy a le^'acy and it had to be realized out of the proceeds of realty, North, J., siiiil : " In the ordinary case the Court has said that a ceitiiin rule is to be adopted in the distribution of personal estate, namely, that let,^acies are to be paid within a year from the date of the testator's death, from which time an un})aid k'O'acy will carry interest. It seems to me that the same mil' ou^dit to apply in this case, and the interest ou^'ht to commence to run after the expiration of that year " {q). Interest on mortgages : — There is a distinction between tlu' case of a mort) /^ Marshfield, 34 Ch. D. 721 (18S7), ai^iroving Kdmunds v. Waugh. L. R. 1 F,(i. 418. Cf. Sutton v. Sutton, 22 Cii. I). 511, IVariiside v. Flint, 27 Ch. I). 57!t. For Canadian cases, ,«'■'' Ford v. Allan, 15 (Jr. 505; llowern v. Hiadlmm. 22 Gr. !tO ; Allan v. McTavish. 2 A. U. 278 ; Macdouald v. Mac- 'l^Miilil. 11 O. H. 187; McDonald v. Klliott, 12 O. K. 08; McCullough v. ■^ykes, 11 l». K. 337. — f — T 'Alt ^^ 'fl ^Hl' ' <<|R:wa ■^"- ' .:,» ' ,;■ 1 'i|i! ■■■■•midm ■if : : ^-... ,-■■ '^ •' *' iltv-'; fllr If ft . 428 lt/-:AL PnOPERTY STATCT]-:S. [K. t.. o. tion (/), 01' when added as a party in the Master's office ( n ), In tlie former case, section 17 applies ; the hitter case is now governed by 5G V. c. 17 {r). Interest on mortgdrje ofpersonaUu '• — Section doeh! uot i\])\)\y : see hlelleri^hw. Brown {iv). Money iKiid into Court hy railway, what orreti.rs out of : — " The next ([uestion is to what amount of arrears nf interest upon his mortgages is the phiintiff entitled, and at what rate is it to be calculated ? . . This is not an action to recover arrears of interest in respect of any sum of iikjucv charged upon any land, but an action of trespass in wliicli the value of lands of which the plaintiti' has been forever 'i m ■1 } 1'^ ♦ ■, i' .. r. ,M-^ {t) Redfinption, we p^diminds v. Wiuigh, L. R. 1 Kq. 121. ((') .Vcc Grecnway v. IBromficId, 1) Ua. 201 (1H57), distiiiguisliiiig Harrison V. Dingnaii, 2 Dr. &\Var. 2!)5. ((•) .*^(r notes to R. S. O. 1887, c. 107, clause 4, schedrde B. (ir) 4.-) Ch. I). 22.-). Cf. Smith v. Hill, !t Cli. 1). 14.S, reversionary intH-st in trust funds invested on mortgage. >'-■ H.,•' Beav. Sd, mortgagee of uanal works; Mellisii v. Brooks, (''.22, mortgagee of turnpike tolls. i Cap. in. INTEREST ON JUDGMENT. 421) Edmiimh v. Wangh, L. R. 1 Eq. 41S, and Re Mar^hfiehl, 34 Cli. 1). 721, shews that the statute does not apply to such a suit. " Is a niorto^agoe who has been in possession (jf nioi't- Magc'd hinds from which no income was derivable for nine years to be entitled on redemption to only six years' arrears of interest ? I think it plain that the statute is only appli- cable when the mortgagee is seeking to enforce payment out of the land of his mortgage money and interest, by action. " The distinction between proceedings by a mortgagee and tliose by a mortgagor was pointed out by Vankough- niit within ten years ne.\t after the time at which the mortgagee time when |)t)taiued sucli iw.ssession or receipt, unless in the meantime an "' ""'"^ ', ' ' ' gagee took ('') Lord Westbury in Chinnery v. P^vans, 11 II. L. C. 130(18(14). (' ) .'^ngden, L.C., in Vincent v. Going, 1 .T. & Lat. 701 (1S44). holding that jndgniiiit creditor of remainderman in fee not entitled to exception whilt* ft'iwnt for life in possession. See also Drought v. .Tones, 2 Ir. Eq. Hep. 303, f'iiimi. iited iiiii imvciiaser '■I «Hiify. (w) Ward v. Carttar, L. R. 1 E<\. 2'.) (1805). Cf. Bootl| v. Vyiv>,T, 1 Ir. 1-1. R. Xi, as to pos.session by husband aM mortgagee of wife's .separate estate. I "I 1 O. R. 172 (1882). M lit O. R. 212 (1890). H.ii.i'.s.— 28 *n »:.; fi 1 ^ It.' rf ft^ 434 iiA'/lZ. J'JiUl'EJiTY STATUTES. [K.N..). 285, IiuH placed in clear lij^ht the relatiouH of iiun'toaj^r,,!- uinl m()rt|,'a<;ee, and .since the Judicature Act, the equitahlc doctrine prevails. " By that doctrine, the coiufyanco of the le^al ^'state to the niort^aj^ee was rey;arded merely as security for a debt, and upon the niort<(afjee'H di-ath, lioth delit ainl security passed to the executor. The interest in the land is not in the niort}.(a<^ee, but remained in the niortffa^^or. Po.sHession nnirht be taken by the mortgagee upon default, but that is a very distinct and ditierrnt thing from posses- sion as owner of the estate. The title of the moi-tgan'oe is an eipiitable title; the right of possession upon that mort- gage title tii'st accrues after the making of the mortgage; and the .Statute of Linntations (juimkI. possession of the land, can only run from that time. "The I'ight of entry exercisable by the mortgagee, is a very diilereut and distinct thing from the right of eiitiv still remaining in the mortgagoi". If, before the right of entry undei' the mortgage is barred by the statute, pin- eeedings are taken to foreclose or sell under the power of .sale contained in the mortgage, the comj)letion of hucIi foreclosure or sale vests a new absolute title as owner in the then holder of both legal and eciuitable estates reuriitiM. from which would arise a new point of departure in tln' running of the Statute of Limitations against any occupant of the land. " The right to proceed in ecpiity on the mortgage wtniM first accrue after the making of the mortgage, and as soon as default arose, and it is an ennnently reasonaljle con- struction to give to the Statute of Limitations that tln' right to enter upon the land tir.st accrues to the m<)rtga) lb. fcr Boyd, C, at p. 221. .Ser IH C. L. T. .S.-'. (Article hy Mr. A. C. Gait). y !l [U.S..), <.iii.. 111. .1' Vr.Vo WLIiUiiMliST li y MnHTaAaHH. 43.> [uital )ir ;al estate ity I'of ii Iclit ainl the laivl lortyajfiir. n default. iin posses- .vtj,ni;j;ee is :l\iit iiioi't- in()i't;i;aj:L'; l)U ot till' u'jvjToe, IS ii t of fiitry le vij^lit (jf itute, 111'"- le powor "1 u of such H owner in s reutiite«l, ure in tli'- ,• occupant hi^'e woui'l (u.l as soon bUtU' con- [s that tilt' IniovtyagoK' \,yMr.A.C. I'll I'c/idst; Ji'oni niorhfuijci' (tilihr jxHVei' of suh' : — • ■ I'liilir the authorities (jf HrKt/i v. Piiiih{q) uiul iJoriL liihhlclcij V. Mdssrt/ (r), there uppeiir.s to nie stroiiy; ;,'i'oun(l for siiyiii;^ that the statutt first commenced to run ai,Minst the jiiii'cluiser under this power of sah;, when he so ucijuirerl his title : hut it is not necessary to decide this " (s). h'lj'ri'f of suit for (ulmlniHtrniloH of estiUv (tf ..'ml iii(irl;i'i:it'<- : — Where an action was l)rought for administra- tiiiii of tiie estate of a second mortga^'ee it was soii^'ht to >hr\v that this operated as a suit to redeem the tirst niort- '^^■dii':*.' iwiio otherwise wouM have title l>y possession) and N) .stopped the curi'eney of the statute; in his favour. This vii'W was not adopte1). h-^m 1 1 ^ c ;S ** •iti J i\ 1 1 1 1 436 jREAL PROPERTY STATUTES. [R. S. 0. (Ig- down the interest," this was held a sufficient acknowle ment to give a new starting point to the Statute of Limitations " (w). Acknowledgment to third permn : — An acknowledg- ment by the mortgagee of the title of the mortgagoi-, made to a third person is of no benefit to the mortgagor (t); as where a mortgagee in a deed to a purchaser conveyed subject expressly to the equity of redemption (m;). Accounts kept hy mortijagee: — A point was raised but not decided in Baker v. Weston{x), whether the statutory bar was not defeated by the mortgagee keeping accounts of the rents received by him from the mortgaged premises. In Re Allison (y) the following statement was made in the argument : " The mortgagee in possession may, if he pleases, continue to be so, and it may be advantageous to him Here he has kept accounts as such, and that is payment of interest under section 40 " (z). The mortgagor was held l)arred but the judgments do not treat of the point In (juestion. Possession of purt of estate by inin'tijayee : — See Kins- iiKii) v. Rouse (!) 11 Ch. I). 20;M1«70). (:) ()»•■ aUo Hood V. Kaston, 2(iitf. OO'i. (h) 2 DeU, & J. 07, I0".t (185S). Cai.. 111.] WHERE SEVERAL OWNERS OF EQUITY. 43/ Disabilities of mortffufjor : — »SV« Fmihlfi v. HL4ii 'rf r- 15! f ' ::ir k !,■ • ;i 1 ' ! ^ !^ 438 y^AVJ/v I'Hoi'Knrr statl'tks. [R..S.O. sons t-ntitled to any estate or estates, interest or inturestH, to take effect after or in defeasance of his or their estate or estates interest or interests, and shall not o])erate to give to the mort- gasfor or mortgagors a right to redeem the mortgage as against the |)t'rson or persons entitled to any other undivided or divided part of the money or land or rent ; and where such of the mort- gagees or )>er8ons aforesaid as have given such acknowltHlginent are entitled to a divided part of the land or rent comi)ri.sed in the mortgage or some estate or interest therein, and nut to any ascertained part of the mortgage money, the mortgagor or mortgagors shall lie entitled to redeem the same divided part of the land or rent on payment, with interest, of the part of the mortgage money which bears the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent bears to the value of the whole of the land or rent comprised in the mortgage. R. S. O. 1877, c. 108, s. 21. Acknowledgment by one of two joint morffjugeefi: — See Richardson v. Yonge{{), where such an acknowledgment held inoperative. f.^ i\ t Mortgagee may enter or sue witliin ten years from last payment. Imp. Act, 7 Wm. IV. & 1 V. c. 28. Money charged uixm land and legacies tobedeemed satisfied at the end of ten years if no interest paid or ac- knowledg- ment given in writing in the mean- time. Imp. Acts, :^4\Vni.IV. c. 27, s. 40 ; and37-.H8V. c. 67, 8. 8. 22. Any person entitled to or claiming under a mortjraife of land, may make an entry or bring an action to recover »iuch land at any time within ten years next after the last payment of any part of the principal money or interest secured l>y such mortgage, although more than ten years have elapsefl since the ti:ne at which the right to make such entry or bring such action first accrued. R. S. (). 1877, c 108, s. 22. 23. No action or other proceeding shall be brougiit to recover out of any land or rent any sum of money secured by any mort- gage or lien, or otherwise charged upon or payable out of "Uch land or rent, or to recover any legacy, but witliin ten years next after a present right to receive the same accrued to some person cai)able of giving a discharge for, or release of the same. unless in the meantime some part of the principal nione>', or some interest thereon has l)een paid, or some acknowledgment of the right thereto has been given in writing signed l)y the person by wiiom the same is payable, or his agent, to the i)er- son entitled tliereto or iiis iigeiit ; and in such case no action or l»r(K'eetling shall be brought, but within ten years after such payment or acknowledgment, or the last of such payments or acknowleilgments, if more than one was mode or given. K. •'S- ' '• 1877, c. 108, s. 2a. (t) L. R. 6 Ch. 478 (1871). ti mm 'M Cap. 111.] EFFECT OF .SECTIONS 22 A 23. 439 Origin and object ofnection J2 : — Section 22 was enacted by the Real Property Amenchuent Act, 1874, s. 1 2. Spragge, C., said of it : " There was no such provision in the original Real Property Act, 4 Wm. IV. c. 1 ; and the Act, 10 V. c 121, was passed to introduce a similar provision, the limi- tation then being twenty years; this was in 1853. An Act with the like provision had been passed in the Imperial Parliament in 1837, there having been no such provision in the English Real Property Act of 1833, 3 & 4 Wm. IV. c 27, so that the legislation in Canada upon this subject f(^llo\ved and conformed to the legislation in the Imperial Parliament. The Imperial Act of 1837, and our own Act of 1S53, were passed specially, as appears by the recitals, to clear up doubts which had arisen upon the construction of the previous Acts " (j). ('Ii(i.n(/e efected by b'ection 23 : — Under the old Statute of Limitations, 21 Jac. I., the possession of the mortgagor was if possible construed as permissive and not adverse ; and therefore as not barring the mortgagee. But even apart fiDm the present section it would have been presumed (in the absence of facts rebutting the presumption, such as payment of interest or entry by the mortgagee), that the money was paid at the da}', and after the lapse of the statutoiy jieriod the mortgage would have been presumed to have been satistied (/). The principle change, then etfoctetl by section 23 is to strenothen the presuniption of satisfaction and also in great part to do away with the retined distinction of adverse from non-adverse possession. Sfdtufe operates a re-covveyance to moi'tyaijor, etc.: — In accordance with the principles laid down by Jessel, M.R., in Ddirklns v. PeDvIiyn (l) it has been held that when the (/) Hmkcr V. Morrison, 28(ir. 372(1881). Cf. Dot; v. Williiuns .5 Ad. & I'.lUx.Cds;*!;). ik) />w DunI,,], V. MoNah, r> U. C. R. 28!t (184!>) ; Do,' McLean v. Fish, ib. -•'"' ; /''"• Mi-(;r..g()r V. Hawko, ;". O. S. 4!W (1837). if (I) s,;- uiidf r si'Ction 15, xupra. i I 440 REAL PROPERTY STATUTES. h -! 1^ [K. S. u. right of action for entry or foreclosure is taken away, the the title of the mortgagee is extinguished and by virtue of the statute a parliamentary re-conveyance (jf the whole right, title, estate and interest of the mortgagee is made to the mortgagor or his assigns (r/i). " Claiminy iLiuler a morUjiifje " : — Where a purchaser took a conveyance in which both mortgagor and niortgajree joined, he was held to be a pei-son "claiming under a mortgage " within the meaning of section 22 (n). No action : Foreclosure : — Foreclosure being an action for the recovery of land, it was held that where the mort- gagee ten years and eight months after default claiined payment of the mortgage debt, possession and fuveclosure, he was only entitled to judgment upon the covenant (o). But where a decree of foreclosure was obtained before the lapse of the statutory period, and an action for possession after the lapse of the same period it was held that the rijfjit to bring such an action accrued at the date of the decree {p). Action on the covenant : — Our Courts in Ontario have consistently refused to consider the action on the covenant as within section 23. Thus Mr, Justice Rose, in iMcDomilil V. Elliott ((/) says: " If I felt bound to consider whether SiUton V. Sutton, 22 Ch. D. 511, should bind me, there are some questions of interest which I would wish to hear fullv argued before arriving at a decision, but I tind Mr. (vi) Court V. Walsh, 1 O. R. 170 (1882) /^cr Boyd, C, citing Hoath v. I'ni^li. <) Q. B. D. 345, 3(i4. N-v Harty v. Davis. 13 [r. L. K.'iS as to elFi'it nf acku.ny le'lginent after statutory pt^riod. Cf. Warring v. Warring, o Ir. Cli. li. ti : Honian v. An i rows, I Ir. C. R. UMi ; Grt-„'soii v. Hindley, ID.Iur. .'183 (HW) casM of reversioner and tenant for life. {n) Dm Baddeley v. Maswey, 17 Q. B. 373 (1851). {<}) Fletcher V. Ridden, 1 O. R. 15.-| (1882). S, Gr. 3!» (1874) ; Harlock v. Ashlu-rry. 1!> Ch. I). 53!t. (/)) Pugh V. Heath, 7 A])|). Cas. 2;{.') (1882). *<■ Hugill v. Wilkinson, Ch. D. 480; l{< Lake, 1)3 L. T. ilti; Henry v. Smith, 2 Dr. & War. Mh -'^ mortgage of reversionary interest. (7) 12 O. R. !»8 (1880). Barwick v. Barwiek, 21 Wilkinson, :1S to :;T- ■i''>^ t .-IJ , a .. Ill] PRESUMPTION OF SATISFACTION OF MORTUAUE. 441 Justice Proudfoot in Macdonald v. Macdovahh 11 O. R. 187. at p. 190, declined to follow Sutton v. Sutton, and followt'J Allan V. McTavia/i, 2 A. K. 278, as the decision of the highest appellate tribunal of this Province " (/•). Even ill Enuland the statute does not bar an action aj^ainst a surety for the mortgagor on a covenant («), or promissory note {t),or bond (u). Satitj on covenant : — "The mere fact that the mort- j^'iigee could not recover the money on the covenants containeil in the mortgage, l)ecause twenty years had passed tioiii tlie time tixed for its payment, will not establish a piiyineiit so as to reconvey the legal title to the mort- !:;an-()r "'( r). Jii. •_'!)(), sufirn. Srr hIsd Kfeves v. Hutoli'-r [1S91 ~^l I). .')()!), as tot'fffct of acct'lfiation clause. (■■<) /^; Krinby, 43 Ch. 1). 10(J (1881)). ^ {I) A'' Woliiierhausi'ii, (il' T.. T. .')41 (18!I0). (") /.'-• Powers, 30 Cli. 1). 1'1>1 (188.">). {i-\ Mahar v. Friwer, 17 U. C. C. P. 414 (18(!7), decided l>efore en;ictment («■) .-i A. K, 1(17. ■V!.; 2K iS- 442 REAL PROPERTY STATUTES. [R. S. 0. pf III ' ' ' i; -^1 from section 28, as revised in R. S. O. c. Ill, so that there is no longer anything in that section which in terms inchides judgments, or to which the reasoning of the Knglish decision can apply. Jay v. JohnMone is also reported in [1893] 1 Q. B. 25 {x), and follows the case of Hehhlethwaite v. Peover [1892] 1 Q. B. 124. '• The only Limitation Act, therefore, which can apply to a judgment regarding it as a specialty (as to which see the cases last cited and McMahon v. Spenvt-r, 13 A. R. 430) is R. S. O. c. 60, s. 1 " ( «/). Charge for local improvement.^ : — See Hornsnj v. Monarch Investment Co. {z). Vendor's lien: — A vendor's lien for purchase money is within this section (a). " Money charged upon or payable out :" — See notes to s. 17, siqyra, also Bowyer v. Wood^nan (b) ; Roddam v. Moi'ley {c)\ Re Stephens id). Legacy, hoiv far within section 23: — A legacy is primn. facie within section 23: "A legacy does not cease to be ii legacy because it is subject to some implied trusts. An executor was always in a loose sense a trustee for creditors and legatees, since he held the personal estate for their benefit and not for his own, but such a trust does not take the case out of the statute. An executor cannot be deprivel (j:) Also in [1803] 4 R. Ift6. (»/) OHler, .I.A., ill Mason v. Johnston, 20 A. R. 412 (ISO.?). (;) 24 Q. B. D. 1 (I88i>), time runs from completion of work, not apiJortion- ment of ex|M>nse.>*. («) Toft V. Stei)hens(m, 7 Hare 1 (1848). (h) L. R. 3 En. 313 (1807), inteieHt in proceeds of lands devised \\\o.m trii'f. L. R. 18 Eq. 24() (1874), distinguishinfr Paw-ev V. Barnes, 20 L. J. Ch. 3!»3 (1851) s. 23, does not ai)i)ly to i)art of lands remain- ing unsold. ('•) 1 De(t. & J. 1 (1^57), inonev due on a bond is not within s. 23. Cf. Morley V, Morley, .5 D. M. & (J. 010 (1855). (d) 43 Ch. D. 39 (188!(), effect of charging simple contract debts on land. Cup. 111.] LEGACIES, HOW AFFECTED BY STATUTE. 443 of the benefit of the statute by shewing that he is ii trustee : it is necessary to make out that lie is an express trustee "(e). Lc(l«cy not charged on land is within section J-l: — Not only legacies charged on land, but legacies payable only out of personal estate are included (/). h'gacy incliules reHidue or share thereof: — See Chris- flan V. Devereux (gr). Charge of debts will not revive barred legacy : — Where a legacy unpaid by the executor has been barred by lapse of time, a charge of debts by the executor in his own will will not revive the debt (h). Former rule as to legacies : — Formerly the Statute of Limitations did not apply to legacies but the Courts acted on the principle, " that claims the most solemnly established upon the face of them will be presumed to be satisfied after ii certain length of time "(i). Legacy, jtresent right to receive : — " The right to receive means the right to receive from the executor or adminis- trator or their representatives, and not from the debtor to the estate, from whom the legatee or next of kin has no rii^ht to receive. The right to a legacy, and the right to (') Lindley, L.J., in lie Jane Davis, Evans v. Mooro (18fll), 3 Ch. ItU. (/i .Sli.'pheixJ V. Duke, 9 .Sim. 5fi7 (18;J!)), followed in Henry v. Smith, ■-' Dr. & War. 3iH (1842). Cf. Rr Stephens, « Ch. D. 45 (188!)) ; Cadhiiry v. Sinitli, L. R. !) Eij. 42 (180!)), following Scott v. .Tones, 4 CI. & Fin. .382, ^\h in trust to executor to pay debts and legacies no bar to statute ; Charlton v. Dur- liiini, Ii. K. 4 Ch. 433 (18(»!)), after administration of estate execvitors Ix-come tiiistfts ; Harcourt v. White, 28 Beav. 3(M» (18(U»), distinguishing I'liillips v. Miinnings, 2 Myl. & Cr. 30!t, investing of legacy as se|)arate fund makes execu- tors trustees ; so too, the signing of a declaration of trust, Tyson v. .Faekson, »• Heav. ;W(t (1861), Re Rowe, 61 L. T. 581 (188!») ; Playfair v. C(K)per, 17 Heav. 1^7 (l.s,')8) ; Htvnner v. Berridge, 28 Ch. D. 2.54 (1881), express and constructive tniHt ; Swain v. Bringeman, L. R. 18!»l, 3 Ch. 2:{3. (;/) 12 Sim. dictum, at p. 271 (1841). Cf. Prior v. Homiblow, 2 Y. & Coll. :'(K), (h) Piggott v. .Jefferson, 12 Sim. 26 (1841). (') .Tones v. Turberville, 2 Ves. Jun. 11. 13 (1702), case of delay of over 40 V'urH ; IliggiiiH V. Crawfoni, ib. 571 (1795), arrears more than 6 years ; Picker- i"i(f V. Stamford, ih. .582(1795), observations on "stale demands." Campbell v. .^andfurd, 2 CI. & Fin. 450 (1834), lapse ot 27 years. Hi '■ ?' I llij 444 REAL rnoPEiirv statctes. [R.S.o. receive a lej^acy are, (as was pointed out by Lord Roniilly in I'Jiuic V. JieUinf/ltam {J), obviously distinct ri{T;lits. Ami the observation applies equally to a share of the residue of an intestates' estate. But the enactments speak not nierelv of a riiijht to receive, but emphatically of a present i-i^ht [,> receive. The next of kin have no present right to rt'ceive from the administrator a reversionary asset belonging to the intestate, before it falls into possession and is possesses I by him, nor when he is compelled to take proceedings to recover an outstanding asset before he recoveis it or obtains possession of it "(/«')• Present rUjht to receive : — By the words " a present riuht to receive " are understood an immediate riirht without waiting for the happening of any future event {b. After a j^resrvt rUjht accrued : — In case of a proviso for redemption if the mortgagor shall "on demand" pay the debt and interest from the date of the deed the statute runs from the date of tlie deed, iniless the promise is to pay a (' oil (it end sum on demand, in which case no riglit of action accrues until demand (/n). M(yrtf/i(). Ci. Hornst'V V. .\lonarch, 24 / (q) and Cklnner>/ v. Evans (r), concludes: — '• In expounding the word ' payment ' learned judges have nsfil such expi-essions as were calculated to shew in the (•use before them that the payment relied on was or was not the payment meant by the statute. In this case their Lofdships think it sufficient to say that payments made Uy a person who under the terms of the contract is <'ntitled to make a tender, and from whom the mortgagee is bound to acci'pt a tender, of money for the defeasance or redotajjiion of the mortgage, are paj'ments which by section 'AO (.s)give a new .starting point for the lapse of time. An) 11 .\i)i). Cas. •) 11 H. L. C. 115, payments hy receiver appointed at instance of inort- 2af!:i.... (>) C. S. X. B. v.. 8 J, H. 30. Cf. sfoticmK 22 and 2:<, si'pnt. ^' I h \ ^ 111 ii f ml ' f.t " , 440 HEAL PnoPKIlTV .ST.\Ti'TKS. [U. S. (). Tlie conclusion come to in llarlock v. Anlibefvij, xtipva, was that a statutory payment must be by a person liable or at least entitled to pay. The principle laid down by Gwynne, J., in the Supreme Court that the only person by whom a payment can be made to stay the currency of the statute, is the mortira^or or some person in privity of estate with him or the agent of one of them, was qualified by the .Imliciiil Committee so as to include one who by the terms of the mortj^aoe contract is entitled to make payments (7). 7iy whom payment may he made — Distinct ion between Hectioaa ,i;i & M : — In Tnixt and Loan Co. of Cunmhi v. Stevenson {u), where a subsequent mortgagee took the property from the assignee in insolvency and made pny- ments on the first mortgai^e till within ten vears of the bringing of the action for foreclosure, it was held that as the Hubae(|ueut mortgagee was under the circuiii.stanee.s primarily bound to pay off the prior incuml)runces that therefore his payments kept alive the plaintiff's rights. As expressed by Maclennan, J.A. {v). " The present action is also (jue of foreclosure, and therefore we must hold that the case is governed by section 22 and not by section 23 so far as there may be any difference between the two sections as to the class of persons by whom valid payment may be made of principal money and interest. It is true that in making the revision of 1887, section 23 was altered from (0 Lewin v. \Vilst)n, 11 Apj). Can. G47 (1880). .sVv fiirtln-r Lins.ll v. Bon- Hor, 2 IJing. N. C. 245 {IbST}). Hoiiian v. Andrews, 1 Ir. Cli. K. 10•«, i)ayinents by receivci nf n^irt- gagor; Cockbiirn v. Edwards, 18 Ch. D. 457 (1881) per Je.ssel, M.K, ivceiiits of mortgagee in posse.ssion do not constitute jjaynients by mortgagor ; Stalky V, Barrett, 2() L. J. Ch. 321 (1857), surplus of annuity assigned by mortga^'or ii" collateral held sufficient to keep charge alive ; Heager v. Aston, i/i.'-W'2, [m\ mcnts by surety on collateral security ; Ames v. Mannering, 2ti Beav. .")S3 (lS.V^i, payments by widow binding on heir ; Thwaites v. McDonongii, 2 Ir. K, where it was held that "where a part payment or payment of interest has been made which has the efiect of preserv- ino; any right of action, that right will be saved, not only against the party making the payment, but also again.st all other parties liable on the specialty. (!'■) NewbouW V. Smith, :« Ch. D. 127 (1S8(5). (.'■) Dihl) V. Wiilktr, [IWtSj .i K. 474 ; 2 Cli. 4-Jit. ''/) M L. T. 223 (lS,>!t), uiortKaKt' kt'iit alive by iiuyiin'iit by tenant for lifo; IJrtLr^iiu V. Himlley, Id Jur. 3S;< (ISKi), ctftrt of tenant for life adniittinu that I'iivim nt.s made ; L()ftu« v. Swift, 2 Sell, it Lef. ((42(180(1), laclies of mort^'iiffiM- ;^, ,,...;.. .* *. i. f „ i;r„ .1,. — i. :...j:„.. * ; — •■ : .,,!.,.» « fr, Del I'iivim nt.s made ; L()ftu« v. Swift, 2 Sell, it Lef. (J42 (180(1), laclies of mortK'iiffiM- a- iitfainst tenant for life do not jm-judice niortgat^ce as against reiiiainderman, f'illciwed in Wrixon v. Vize, 2 Dr. & War. 2(« (1842). See further, Beckett v. felaCoiir, 11 L. R. Ir. 187, in Jlc Fitzmaurice, 15 Ir. C. L. K. 44.\ (:) L. R. 12 Eq. 41 (1871). Sec also Toft v. Stei)hen8on, 1 D. M. k G. 40. I") 1 iMi. i"k J. 1 (1S,57), but where the portions are 8ei)arable, see Dick- inson V. Teewlale, 1 D. J. & S. 52 (18()2), devise subject to charge of debts of one iart tij A. and another to B., and payment by A. J • n W I 44» /i'AMA fnoi'iiitrr sr.\ri'ri:.\ [1{.S.(», I If lit ■\ r?;«i«ss c bi r ' -j' '^ i »4 ' *f.! Agent to fKiy intercut : — Pnynients l>y one wlio sonic time previously had actetl as Holicitoi* for the ir-i-sou in poHsesMion will not necessarily hind Huch pei*son without further proof of ai^ency (h). Pai/ment to wcond niorfnai/re hif solicitor of firM mortifini)nt)a (/>). By correspoiideuco, Joslui v. »S'. A', /if. Co, ('/'. Ail.-iKnidf'dtfment iiuist he intentional : — There is authority for the i)rop()sition that for an acknowlc(l<;ment to takt' a (lemaiulout t)f tht; statuto itinu.st apjHiar to havo liccn iiuult' with a view of renderinj^ the party iiiakiiii; it liaMt' to the demaiid and it imi.st liave lieen made to the party entitled to make the demand. Thu.s where certain letttis had been written hy one e.vecntor not for the purjiose of char<^in;^' himself, lint of throwin;;- the Inirden uf payiiK^nt on the co-execntor, they were held not an ackiiowledi^'ment (/•)• Min'h/diior aiul niorf;j(ii/ee tlw >^amfi : — See To/t/miu v. Booth (s). Ktj'tcl i)f insnlmu-;/ of morfi/dnor : — In Coarf v. H'f/.s'/i (/) it was ar^jjntMl that the effect of the insolvency of tliL' iiKjrtyagor was to siispend the i-unnin^of the Statnteof Limitations, and that the assi«^nee became a trustee for the benefit of all creditors. This was answered by Boyd, C. : — ■ "To this I (|uite afjree so far as the I mortga<,'ee i is a cretlitor under his covenants in the mortoaye, but it does not follow that the lien antl security of the niortj.,nioee on the land morto'ajijed is affected by the insolvency. On the C'Mitrarv the reverse has been held in Iffinlersini v. Kerr, 22 (Ir. })1, and there is nothint^ in the facts of tliis case to load me to depart from that authority." d') 3Ir. Ch. R. 2;«;. [■i] (i I). M. & (J. 270 (1851). Cf. Vincent v. WillinKlon, \ Lour. A: T. !.")(!. (') Holland v. Clark, I Y. & C(.ll. C. C. 151 (1H4'_'), niur.nvfr th.' Irtt.rx wtrc iiilil|.em4C(l to the hu.thand "f thi' party entitli-ij ((It'Cfiisi-d) Iwfdn' h'' hiul ukiiKiiit iidininiHtrution. Cf. (Irenfell v. (iirdlestone, 2 Y. k Cull. HT'''. (^1 ;«JCh. D. (i07 (1S87). Cf. Wynne v. Stiff.in, 2 Phill. 3o:. (1H47), cano wlurc iniirttfatrw also tenant for life; Binns v. Nichols, L. K, 2 Va\. 2.">ii (iwti(i), ii'i to li'ttacy, where legatee and executor the same person. . (■) 1 (). H. 170 (1SH2) ; affirmed, !» A. K. 2'.M (IKH.'^). Cf. Lyall v. I'lnk.r, l''"-'! W. X, 20S, ucknowledgnient by insolvent after assiKnment, 1 '^ y ^ 452 HEAL PROPERTY STATUTES. [R. s. 0. Loaitees of the down — Effect of issue of imtenU U, mortfjofjor w nwrtguf/ee : — In Watson v. Lindsay ((;), a locatee of the Crown inortct of any sum uf iiioii.', he enlarnfed hy express trusts for raising tlie same. Imp. .\cf a7-:w v. e. iJ7, s. in. or le^'acy so cliarged or payal)le and so secured, nr any (lamap- in reHjiect of .nuch arrears, exce)>t witiiin the time within «liii': tile .same Would he recnverahle if there were not any such tin-' K. S. O. 1S77, c. 108, s. 24. Enlai'ifXiant Inj crpr^ess trusts: — The former law as t' the effect of e.xpre.s.s trusts in relation to the Statute o| Limitations will be found in Laivton v. Ford (/), in wliicl; it was contended that certain terms when created coii- ()') »; A. R. (518(1881). (t] L. K. 2 Kq. '.17 (IStiC). j/S^Snt.* ^^mm Cil.. Ill] TRUST FOR SALE- -PA YMENT OF DEBTS. 453 taiiied express trusts; but that the express trusts being .iiscliar<,''e(l, the terms remained not us trust terms but as i!iiirtn'!ige tei'ius, anM (Ifclaved that his real estate was to be considered lieisoiuilty from t' •• line of his death, a claim was made for a debt more than six years old and less than twelvt; ir.he English period of limitation for ivalty) and the tjues- tinn arose wh it St.i>.tute of Limitations governed. Kav, J., slid: "I can ;>?! no doubt whatever that by this will at least a charjije, if not an express trust, is createil for pay- ment of debts out of the proceeds of the real e.state and it is iiiditlerent now, as I have said whether it is a charge or .1 trust, because under the recent Act the time of limitation IS tlw siuiie, viz. : twelvej years, whether it be a char;;e or I trust. . . . There may remain anothei- (piestion upon which I will not j^ive an oi»inion now. According' to the ■<'iit's of cases which wei'e considered in Allan v. (inft (r)^ -u-h a direction as there is here would make the d(d»ts I'ayahle rateably out oi the real ami personal estate. It is ■ luitc open to ari^^iment whether such part of the ilebt as is ]iru])ei'ly attributed to ])ersr)nal estate ou^ht not to be c'liisidcred to he barred («;). U i ('/) .S. 10.'). ,SV< aim) HuRlu-i v. Coles. 27 V.\\. 1). 2:il (IHS4) ; 'M\v,ir.!s V, Wiu-d.n, L.U. !) Cli. A'X, (1S71) ; K..ani>iclf v. Tlitit. •11V\\. 1». ■'"!Hls,s;<). (1) L. K. 7 Ch. 43!t. fir) n< .St-|ili,.tH, Wivrl)nrt(in v. .Stf).h.'n-", V^C]^. \). Hit (tSKIt). Sn Playfair V. Cmijihi-, 17 licav. 1S7 (1^0;i), as tu l-.'iciicii-^piiyaliif out uf |m riunalty. ic r I' r>i < t ' H I I 5 Hi ' '3i 454 iJiS^i PROPERTY STATUTES. [R.S.0 The above case suggests a problem in connection with the Devolution of Estates Act, viz. ; whether the extensive );rovisitMis of the 4th section of chapter 10(S supra reifard ing the distribution of realty as personalty are to be given more effect than the declaration of the testator that " his real estate was to be considered as personalty from the time of his death." In other words will the real estate of a deceased ])erson be still real estate within the pi-ovisions of chapter 111 ; or will it by virtue of chapter 108 be taken out of chapter 111 and treated as personalty in reckoning the period of limitations ? DOWER. 25. No action of dower shall be brought but within tin years from the death of the husband of the dowress, notwitli Action of dower to be within ten i*tanding any disability of the dowrews or of any person claiiiiiiiL' years. under her. R. S. O. 1877, c. 108, s. 25. Time from which rijrlit to bring ac- titin of dow- iT til bectim- lHUcil. 26. Where a dowresH has, after the death of her husband. actual iKiRsession of the land for which she is dowahlc, t ithni alone or with heirs or devisees of her husband, the period of ten years witliin which her actiun of dower is to be brought siiall !»■ computed from the time when such possession of the down^- ceased. This section shall not ai)ply to any case in which th>' right of action has ceased before the fifth day of March, 188•), a case in which the right of action had coaseil before 5th ]\Iarch, 1880, the wiilow Imd Itoen in jKjssessioii along with her infant daughters, but hfi;i taken no stops to have her dower assigned. Osier, J. A., said : " It was not attempted to impugn the decision in McDonald v. Mcfnfosh. H U. C. R. '^88, and similar ca.ses, ending with Laiillau-w .lackcK, 27 Or. 101, in which it has been heM that the fact of the widow remaining in possession of her hushan< land made no ditt'erence as to the necessity she was umlor of suing for her dower w'ithin the peri<) I',- 'I • ';i '1'^) 'Vij (x) 13 A. U 121, 127 (18St'.). aoti. 314. See also .Vlleii V. Edinburgh Life, 23 (ii. % ^^^m (up. 111.] POSSE SSHuy OF Down ESS. 455 liis death. Havinrif no title to any part of the land, lier nos.st'.s.sion cannot be attributed to her right of dower." Agreement in lien of (lower way stop statute ruv- ii'iVKj : — In Fraserv. Guv/n (?/), there was a verbal agreement liftween the widow and tlie heir-at-law by which the widow was to receive one-third of the net rents in lieu of duwer: and in pursuance of thi.s arrangement a clau.se was in.sortod in a lease for ten years by which the lessee was to pay the widow one-third of the rent. Proudfoot, V.C, 111 Id that the ay this Act, luiMuh '■ntry, distress or action shall be made or broiif^ht by any \^•T-'^n clainiint,' any estate, interest or rii,'ht which such tenant in t, :| nii;,'ht lawfully have barreil. U. S. O. 1.S77, c. lOfi, s. L'll. Where tieri- (xl of limita- tion elapsed af^'ainst a t'liant in tail to Iw) deemed to have elapsed a^'ainst those whose rijflits la- could have barred. Imp. Act. :n of,sectli>i) .'/.• — " We ao;reo with tlu' Court of Coinmun IMoas, that tlie 21.st section a])pli('s to thi- Ciuse where the rij^ht of entry of tenant in tail is ban-ed hi/ 1, is- neglect to make such entry in pi-oper time, not to the case wliere lie has conveyed away his own ri<.jht to another, a:iil put it out of his power to enter. In the latter ca.so, the rii^ht of entry is not barred by reason of the sanu; not bein^ made within the period limited, but by reason of his not being able tt) enter against his own conveyance "('<). In other words, the distinction is, that in a case of " rolnn- farii (ihanilonraent " by the tenant foi- life the issue may Ijc banx'd by the lapse of a period that would not have IkuiviI them if the tenant for life had (•(Hirrifed away his right ('•). l)at's section .J7 refer onlij to estates in remni n>lev ! — See remarks of Lord Bramwell in A'dW of Aberyaventnj v. Brace {d). Whev reniaindernian undcr disidjilit'es : — If tlie statute has begun to run against a tenant in tail, it wili continue to run against the renuiindermaw, though he iiuiy be under flisabilities (/). {>>) KiniiiiKton v. Cannon, 12 C. 15. :{4 (IS.'iJi), ('■) Ih. at p. It;. Sec ttlso Anstin v. Llewellyn, '.» Excli. L'7(» (1>.m). ( refer only to estates in remainder, the estate of the tenant in tail whali descends to his issue beinjf provided for already by :«ection 2." (<) (Joodall V. Skerrat, IS Drew. 21ti ; 1 .Fur. N. S. .57(1H.V.). ?it ap. 111.] I! An OF KSTAThS TAIL. • It ITIII ,,., , ., , , , . ■ , flaiiMMl ill 28. \\ liiTo a tciiiuit 111 tail of any lainl s, or bring an aetion t<» reeover such l.iiii' <>\- lent, but within tin- iioriwl durinff which, if such tiuiant in tail hail so lonp continued to live, he nii^fiit have niiule such i-iitry or ihstrcss, or brought such action. U. S, O. 1,S77, c. UlS, tenant to lnj (•oiii|(ut«'d itj^'.iinst tl.os.. whose rijjlits he eon Id have liaried. Iinp. Act, ;! 1 W. IV., c. L'7, s. -l-l. (Ill/ [fill': — For law uiuler 21 J;ic. T. v. \Vt,svv Il",-'h'{f). 29. W'liere a tenant in tail of any land or rent has made an .i^Miraiae till T'uf, wiiiili dot's not o|>erate to bar the estate or •-tates to take effect after or in defeasance of his estate tail. .iiiil an.v I'evson is by virtue of such a.ssurancc, at the time of the >xion under an as>;iraiiceliy a tenant ill tail, u liich iioe> Hot bar the remain- di'rs, they shall b,. barred at the end of ten years after that |ieriod at wliieh tile assurance, if then execut- ed, Would li.ive barreil them. Imp. Aets.;{-4\V. IV. c.'27. s. -S-i; .111.1 ;^7 lis V. c. ."i7, s. (!. (iJ)jn-f ofscrtion ■J!f : — "It was intended to k'oislute for tile case of po.sse.s.sion under a base foe 'I'lx' l»nssossioi\ by virtue of such assurance,' to be etl'ectual uiiilci' the 2^}r(l sectio;i. inust be a possession by virtue of an iKsumiice wliieh turned an estate tail into a base fee"\//}. i n {/) 1 linrr. Co. "'I Mills V. ('i|>el, L. K. -JO Kq. »)!••_' ("87.')). >Vv Morgan v. Morgan, I.. K. M Kq. !Mt (l,s7<»i. following Fenny v. Allen, 7 L). .M. ^: (i. l<»7. ."»'- A''- >liav..r. :!L"liv. Ch. ;{7!MI871). 45S JiEAL PROPEHTY STATUTES. [K. .S. u. 5'-., h KyllTAKLR CLAIMS. if;!' m \ \u I 1 11 cast' of express tnist, tlu' riKht sliall iiiit U- (U-eiiied t(< liavf iic- criH'il until a coiiveyaiK'c to a pur- c'l laser. Imp. Act, S 4 W. IV. C-. 27, ». 2r). 30. (1) Where any land or rent is vested in n trusttc uiK.n any t'xprcss trust, the ri(,'ht of the ctKttii '/"'■ trti.it, or any \wTft'\\ claiming' through him to bring an action against the tnistetM.r any person cl.iiniing through him, to recover such land or rent, sliall Ik' deemed to have first accrued, according to tiie meuiiiiiL' of this Act, at and not liefore the time at which mich land "x rent has In^en conveyed to a jmrchaser for a valuable cmisiilcia tion, and hIui'I then be deemed to have accrued only as upain-t such p\ircliaser and any person claiming through him. K. S. 0. 1H77, c. IDS, s. :«). Claim of (2) No claim of a cr.ttiii i/in' trust against Ir's tnistee fur any d.ttni i/Hi property held on an ex])re!?H trust, or in respect of any breucli ut •xffainHt "'"''' '■''"■■'^' "^''''^ll '^' ''**'<' t" I'*' l>arred by any Sl.'xtute of Liniita- trustee. ^'""'*- '* ^'- ^'- ^< >*■ ^"i (-)• Rnlf Id equlftf he/ore J-i Wm. IV. c. L'7 :—T\ni Court of Chancery in applying the Statute of Limitations to cases of trusts, observed the distinction that if the trust ho cmi- stituted hy act of the parties, tlie posse.ssion of the tnistic is the pos.se.ssion of tlie ei\^fiii que fruf*f and no lenotl) of possession will liar (A); but if a party is to be constitiitoil ji trustee by the decree of a coiu't of etpiity founded on fi'iuui. or the like, his possession is adverse, and the Statute ot Limitations will run from the time the circumstances of the fraud were discovered {iX There is also the further distinction, that while in cases where there is no doubt of the origin and existence nf a trust, the Court will not allow time to be a Itar, yet in (juestions of doubt whether any trust exists, the Court will pay the utmost regard to the length of time durino- whicli there has been eniovment inconsi.stent with the existence of the supposed ti'ust (J). \-^ (li) Cf. Townsheiid V. Townshend, 1 P.r. C. C. r.r.l : Lle«vl!yn v. M^nk- worth. r.ain. C. K. 44!t. (/) Hovenden v. Lord .Viinesley, 2 Sell. A: Lef. <;33 (ISOf!). (,/) Atty.-(ien. v. Fish Mongers Co., r, Myl. & Cr. It) (l.'^41). Ca|.. 111.] WHAT IS A TllL'ST OF LKdACIh'Sf 45!) Ride under section oO : — " Tho 25tli section (/.) of tlu- laU' Statute of Limitations, providinj^ for oxpreH.s trusts, reiulors lapse of time unimportant in all cases within the .siction, that is, lietween tlie cestui e auircnient that he was to convey certain other lands to 1'. F. Instead of so conveying- he sold the land. P. F. was (if tlie age of twenty-one years. It was held that " the I'efendnnt was but constructive trustee of tlni land or of the money, anil so the statute ran, and has barred the claim." W'Jtiii is II lid ii'/iat is not a trust of leijocies f — In Re liiirLrr, Buxton v. Campbell {<>), a testatrix (ls">7). I") '.'S Gr. HSl (1H8]), Blake, V.C. Costs, liowi'vcr. wnc refused tin- isenting jiidfiiiient of Stn.,1- .1,, in McDonald v. McDonali',, 21 S. C. U. L'dl (LsHi.'). -Vr also liaiHi.r V. Berridge, IS Ch. D. 2r)4 ; Petre v. I'etre, 1 Drew. ;«1M : .Suiids to Tii(im|K(iii '_>2 Ch. D. ()14, trusts arising from acts of parties; Diikiiisoii v. Ti csdale, 1 I). .1. it ,S. ;")!•, trusts arising from ojjeration of hnv ; Soar v. .\sh- well [lS!i;{]4 K. (i02, solicitor as trustee. (■■) [1H!»2] 2 Ch. 4!C), following /■'.■ Davis, flS'.U] 3 Ch. 11!». Cf. Proud \- l|ioii(l, \V1 IVav. 234, Francis v. (Jrover, 5 lla. 3)t,Ciiniiinf,'haiii v. Foot, 3 .Vi)]). •'as. !I74 (1.S7S), question as to there lieiiiga trust for anniiitv. >W also Miitlow ^. I'igK, IS Kq. 24(), 1 Ch. D. 3K'> ; Dawkins v. Peiirliyn, 4 .\pp. Cas. .'.], |'r>«itory trust ; Sturgis v. Mor.se, 3 De(J. & .1. 1, insolvent rr.sYin' '/((-• ^r('.et\vet'U that part of tht; property as to which a trust is dechired, and that as to wliich no trust is (h'chired. No trust is dechired of the Ic^S^acies. The I'stuti-. which is in the hands of the executors, is to he htM liv tht'ui upon certain trusts so far as trusts are dechired : it is to he heUl suhjt'ct to the payment of the len'aoifs as to which no trust is dechireil, and then it is to hi? lieM on trust I'm- the residuary U';^atee. In my opinion, this is not n trust Ir;,nicy within the meaniny; of eitht.'r the statute nr tli'' authorities." J'J.r I n'f'ss fnist where oiiI>/ Wf',s8/(>;(, how far a trus'cf : — A niurt- Lia-iee in iiossession is not in atliUiciarv rehition in anvsiich sense as to make him a trustee within section 80 (f\ Mort. B. I). 1-JH (ISS'.t), trust lu'M to iiuiliidi' nil .•state, foil iwiiii; S;ilr.'r V. C:iviiiui|,'li. 1 I). & Will. (itW, iiml (listiiigiii.-.liiiiK (JImrclur v. Mjiittii. 1-' Cli 1). :U2, case wlii'i'f trust (U>c(l void tiiuirr Murtiiiaiii Act. Sn Vaidly v. Holland, "JO Kii. 4L'S, tnistees of will dialing with proix-rty ivh to wiiiili i I>ariial iiitcstafV ; .laoiiiict v. .ruccniet, 27 Heav. ;WJ, ciiargc or trust to !'.iy il.'t)ts. (7) .3 I). F. & .r. 58. (-•) L. K. S Oil. 30, .-xplaint'd in /,'.• Alison, 11 Cli. I). 284. (v) 'M Ch. I). 4(!'J (1S8()), surplus after mortgage sale retained l>y v.lifit.r. (0 >'■,■ Hickman v. Upsall, 4 Ch. D. 144 (lS7t)), account of r-nts .ui 1 lirotits. ('() .V' R> Alison, .rolmson v. Mounsey, 11 Ch. 1). 'J^t (1S7II). .*- al- > .Sand« to Thompson, 22 Ch. I). ()14. Cii|i. Ill,] I'Kh.'^Dys IX A FUtrClA/lY (/IA/!A(TKll. Mil Pei'Mons in fi I'kI iK'hir/f rha mrfei' ; riilr tii/ninsf nt/riist' poHsrssion : — " PosHt'.s.sion is never consideretl lulverse it' it can hi' referred to a lawful title " (/). "This case of T/i' Murriiy Caiml, •> O. U. (IS.". (]sst). Iiu'.liand s (icciipation taken to Ik- as tenant liy tin- curtesy si> a.-* not tn opcrati- tMrtiiiii-. hi.] CARETAKERS. 4G:] ■ I'nless the jury ought clearly to have found thai the (Ictt'udant was in possession ab servant or agent of his fiitlier, or had paid him rent within [twenty] years, or iicknowledged his title in writing, we cannot say that they have given a wrong verdict. " The evidence cannot be said to have established any of these points though in some respects it was strong to lead bj the conclusion, that the defendant's father did not intend to divest himself of his legal estate in this property, or to deprive himself of his power of dealing with it, while he hve'I, and there is some reason for concluding that the ilet'endant understood matters to be on that footing ; but the vigiits of the parties to real estate, and with reference to tlie effect of the Statute of Limitations, are governed by certain legal principles and not by verbal or tacit under- standing of parties"(s). The fair inference therefore, is that the Chief Jiastice considered that an understanding that the rights of the owner to deal witli the legal estate were to be preserved (though the occupancy should also be for the benefit of the the occupant) would be binding and sufficient to stop the curieucy of the statute ; but that such understanding shoulil not be merely a " verbal and tacit understanding." Of such an understanding as would be sufficient in ucconlance with the view of the Chief Justice, we have an instance in Greenshields v. Bradford {a). The defendant 1j. s |uatted on the plaintiff's land, and on the plaiutiti's aijent discovering him, agreed to look after the property ; the agent subsecjuently visited the property and got a written memorandum from B. agreeing to held possession •uid lot.'c after the property for the plaintiff. This was held a sufficient recognition of the plaintiff's title ; and, it was held that the defendants could not put him to the pi'uof thereof. (■-) ilobinson, C.J., in Ue Quiusey v. Caniflfe, 5 U. C. K. 004 (184fl;. (") I'S Gr. 21)!) (1881). 4G4 REAL Vnol'ERTY STATUTES. [U. S. 0, I Parol evidence of occupation «.n' caretaker: — It seems, however, that an agreement to liold as caretaker may l>f proved by parol evidence. Thus in Hlckey v. Stover (/;), the defendant claimed possession through his mother as tenant and then sought to claim through her as caretaker. Boyd, C. — "The alleged answer to the Statute of Limita- tions by an averment that evidence can be given on a new- trial that the mother was in possession as caretaker for the son, is evidently an after-thouglit. The son's pleadinj; is, that she was in as his tenant ; in the character lie now seeks to clothe her with, she Avould be in law his servant and not tenant : Yates v. Charlton upon Medlock Uiiion. 4>S L. T. N. S. 872." Proudfoot, J.— "Under t le Limita- tions of Actions Statutes (C. S. U. C. c. 8!S, s. 15); R. S. 0. c. 108, s. 13 (c), an acknowledgment of title must he in writing. But evidence for the purpose of shewing that the occupant was in the position of caretaker or agent for the owner, may be given by parol : Doe Quinsey v. Canife. 5 U. C. R. G02; Doe Perry v. Henderson, 3 U. C. R. 486. 500; Ryan v. Ryan, 5 S. C. R. 887; Johnson v. OVorr. 3 O. R. 26, and had that defence been raised upon the pleadings, the evidence, if tendered, should have lieen admitted "((/). What constitutes occupancy as caretaker: — R;/(in v. Ryan (e) is a case in which the diversity of opinion amonn the Judges illustrates the difficulty of distinguishim; a tenancy at will and an occupancj' as caretaker. The facts were such, however, that the plaintiff was found to l)e in no better case one way than another, for " whether (ni^in- ally caretaker, or trespasser, or tenant at will, he was (b) 11 O. R. 106 (188.-)), followed in Clark v. McDonnell, 20 O. R. r.ti4 (.Ian. 18!)1), but disapproved in Kent v. Kent, 20 O. R. 403, 173 (Feb. IsDl), not mi tiiis i)oint, however. (c) Now c. Ill, s. 13. (d) Application for new trial refused. (e) .5 8. C. R. 387(1881). A ^mm Cap. 111.] CARETAKER AND TENANT AT WILL. 465 tenant at will from the time of the last agreement "(/) *, biiiint up hy his father, the owner, to remove him from possession. Even as to tilt' latter agreement there was doubt as to whether it created a new tenancy- :it-\vill or contiimed a ciiretakership. lice judgment of Gwynne, J. (y) At p. 402. H.K.P.S.— 30 iljl i •JJM m km r » 5 :■ I'ifj I, '' rV M in m Jill ■s ' 11' 'i ii'i 111 lu 1 u 466 RKAL PROPERTY STATUTES. [R. S. (), has been [let in upon the terms of performing certiiin services upon the land, takintjf in recompense the proHt.s of the liind,![a tenancy at will is created "(A)- How occupant may cliveM himself of caretakert^hip :~ A nice point arose in Heivard v. (XDonohoe (i), where the defendant was caretaker for one of several co-owners, anil the property was severed by judicial decree. It was argued that the severance of the ownership altered the relation between the defendant and the owners. But it was held by the Supreme Court that no act being done by the defendant declaring that he would not continue to act as caretaker, his possession, therefore, continued to be that of caretaker and he acquired no title by possession. Occupation by wrong, will not he construed into care- takership : — " As to the gi'ound upon which it has been attempted to rest the case, namel}^ that the defendant might be looked upon by the jury as holding as bailiff oi- servant of the lunatic, J. S., we could not sanction the caise being so distorted ; for it is clear on the evidence, that the defendant entered as a purchaser claiming the fee, and not more in the character of an agent or servant than any trespasser who might have entered at that time. It may be a hard case, in this respect, that the defendant may thus have acquired a v^aluable estate for a very inadequate price, to the prejudice of the heir ; but the facts were all known and his conduct cannot be more illegal than it would have been if he had entered .... by violence and driven the family oft*, having himself no pretence of right what- ever, in which case the remedy of the heir would after this lapse of time be barred "( j). (h) Strong, V.C, in Truesdell v. Cook, 18 Gr. 53,-. (1S71) ! Cf. Phaser v. Fraser, 17 U. C. C. P. 76 (18«4); Doe Kingsbury v Stewart, o U. G. R. n\S (1848) ; Ifi'c (iuinsey v. Caniffe, .5 U. C. R. (502 (1849) ; Doe Smyth v. Leavens, 3 U. C. R. 411 (1847) ; Doe Ausman v. Mintliorne, Jb. 423 ; Doe Mumey \. Mathews, J/i. 461. (0 19 S. C. R. 341 (1891), following Ryan v. Ryan, supra. (j) Doe Silverthorne v. Teal, 7 U. C. R, 372 (1850), Robinson, C.J. Cap. Ill] ADVERSE POSSESSION BY A BENEFICIARY. 467 Suiiiinary : — On the whole we may conchido that whether a man is caretaker, tenant at will or trespasser, is largely a question of the degree of control exercised by the owner and submitted to by the occupant ; that a carotaker- sliip when once established, is something entirely distinct from a tenancy (at will or otherwise) and is not subject to the Statute (k) ; that the rules as to proof of an acknow- ledgment under the Statute do not apply to the proof of an agreement to occupy as caretaker, which may be shown by parol evidence (l) ; t-iat a caretakership must be proved as a fact and will not be inferred merely to further the interests of Justice ; that a caretakership, when once established cannot be changed into another form of occu- pancy except either by a new arrangement with or 'lisposition by the owner ; or by the occupant doing some act to shew his intention of not continuinjj to hold as caretaker. It may be as well to remember that a person claiming under the Statute, may have held his possession through a caretaker instead of himself occupying the premises {ni). Adverse possession by a henejiciarn : — There is nothing in the present section to prevent one cestui que trust from setting up the statute against another, where on his own account he has been in possession for a sufficient time. Thus in the important case of Burroughs v. McCreuj/d (/;), lands were conveyed to a trustee and his heirs, in trust for live persons, as tenants in fee. For more than twenty yeai's prior to the filing of the bill four of the tenants in connnon had been, by their agent, in the uninterrupted and exclusive receipt and enjoyment of the rents and profits of all the l.nids. The trustee never in any manner interferred i i the (A-) See also Ellis v. Crawford, 5 Ir. C. R. 402, cited in Greenshields v. 1 -radfcrd, 28 Gr. 301 (1881 ). (I) See the judgment of Gwynne, J., iti Ryan v. Ryan, cited supra. {m) .See Heyland v. Scott, cited nnder sections 5 (7) ■inpea. (") 1 Jones & Lat. 290 (1845), Lord St. Leonards. i mm^. ^i' i ft .'! ■ I! fa iti If. ?' ' 468 REAL PROPERTY STATUTES. [R. S. 0. trust. It was held that the title of the fifth tenant in common was barred by the ,S & 4 Wm. IV. c. 27, and that the case was not within the .savin*f of tiie 25th section {<>). Similarly in the recent case of Murehlson v. Murchi- son ( p), we find Street, J., saying : — " 'I'hero is nothinj,' in the facts to lead to the conclusion that R. ]). ]\I. took possession on the 12th March, 1,S(S0, under the tru.steos, Ijut everythi?\<»; to lead to a contrary conclusion. He receive'! the rents lumself, and apj^lied them to his own use, treating himself throu<;hout as absolute owner : and by his will he purported to deal with the property as his own, by devis- ing it to his wife and ciiildren. His possession is charged by the plaintiffs in their pleadings to have been a wron;,d'ul possession from the beginning. It is true that he was one of the beneficiaries under the marriage settlement, and as such was entitled to receive from the trustees a part of the i-ents, but this did not entitle him to the possession of the land, the right to which was vested by the marriage s Ule- meut in the trustees. I think that the case is governed by the principles laid down by Lord St. Leonards in Bar- Toughs V. McCreight, 1 J. & L. 290. R. D. M. did not place himself in the shoes of the trustees when he took possession on 12th March, 1870, but took possession adversely to them, and continued to hold adverselj' to them until his death." Adverse 'possession by executor: — Johnson v. Kraimer (q), was a rather curious case in which the person desig- nated to carry out a trust when it should arise, gaineti title by possession, the express trust never liaviug arisen. The gist of the case is well expressed by Osier, J.A. : — " I think the proper construction to be placed on this will is, (o) I. e. the present 30th. {p) 17 O. R. 254 (188!)). See further, Keene v. Deardon. 8 East, 248; Smith V. King, 16 East, 283 : Drummond v. Saut, L. R. 6 Q. B. 703; GerrarJ V. Tuck, 8 C. B. 231. {q) Johnson v. Krainer, 8 O. R. 193 (1884). wm Cap. Ill] CHOWy NOT BARRED ALTHOUGH TRUSTEE. 469 that a life estate was oiven to the testator's widow, with a power of sale to the executors during her life-time with lior consent, and the remainder in fee to the children on her death in the event of the non-execution of the power. Tuloss and until the consent of the widow was given, the power of sale did not exist, and the executor had no duty to perform in relation to the land, and he did not take nor was it necessary that he should take the legal estate, as he never was required to execute the power, it seems to me that he never l^ecame trustee, and that the plaintiff's title is barred by the Statute." The executor of a deceased triiHtee cannot set up fttatuie: — See Brittlebank v. Goodwin (/•). Purchase by trustee, mortgagee, etc., not within i, an 1 IJr.Tcton V. Hiitcliinson, 3 Ir. Ch. R. iWl, not followed. (s) Re-enacted by R. S. 0. 1877, c. 108, s. 21) ; now incorporated in section 4 tif tlic i)reHent Act. (0 Faulds V. Harper, 11 S. C. R. 650 (1886), Strong, .1. J i ■*%, 470 REAL PROPERTY STATUTE.'-!, [K. S. 0. 5 I expiessly deciding that the Crown is not barred thougli a tru.stee"(tt). Operation of section iiO on charities: — Charities are trusts, and are within the provisions of 3-4 Win. I\'. c. 27 (r); and wliere the Attorney-General, having' n; independent rights of his own, stands only in the sauif situation as those who are entitled to the benefit of u chant)-, if they would be barred by lapse of time, he is equally barred (tr). Notice of an express trust in favour of charity : — The lapse of the statutory period after a conveyance for a valuable consideration is made equally a bar, whether tlie purchaser takes with or without notice of the trust (■'). The former rule was that length of time would not prevail against charitable trusts where the land had been purchaseil with notice of the trusts (y). A lease may he suffi.cient alienation : — " Here the alienation was a lease, but what difference can that pos- sibly make ? A lease is an alienation pro tanto. It might have been a lease for 999 years at a peppercorn rent, which would amount to an absolute alienation " (z). For ri(fht8 of stranger as against trustee and bene- ficiary : — See Scott v. Scott (a). 4 H. L. 189 ; Eegina v. Bayley, 1 Dr. & War. 213, and Kegina v. Guinness. 3 Ir. Ch. R. 211, considered. ((•) Cf. Magdalen v. Knotts, 4 App. Gas. 324 (1879). ,Scc Atcy.-Gen. v. Persse, 2 Dr. & War. 67 ; Commiss.ioners of Charitable Donations v. Wybrantn, 2 J.. & Lat. 182. (ic) Magdalen College v. Atty.-Gen., 6 H. L. C. 189 (1857). (x) Ih. at p. 210, Cf. Atty.-Gen. v. Flint, 4 R. 147 (1894); Atty-Gen. v. Davis, 18 W. R. 1132. (y) Seet.fj. Atty.-Gen. v. ChristK Hospital, 3 M. & K. 344 (1834). (c) Atty.-Gtn. v. Payne, 27 Beav. 173 (1859). Cf. Attv.-Gen. v. Da\ v, 4 DeG. & J. 130. (a) 4 H. L. C. 10G5 (1864). Cf. Young v. Harris, 65 L. T. 43, infiut easlu> qui' trust, and see Hewitt on Limitations, p. 192. li i Cui>. 111.] LIAIilLITY OF TRUSTEE. 471 LUih'd'dij nf iriisfce: — We may here insert a [lortiou of 54V.C. 19(0)! An Act respecting certain Duties, pDwers an'l Lialjili- tieri of Trustees. 1. Thin Act may be citctl as " The Trustee Act, Sluut titk'. IWl. 2. (I) For the purposes of this Act the pxpressiuii I»t|ilic.iti(in of sfctiun. Ai)|)licati(m of Act. Proviso. with or without n-staint uptin anticipation, h\it «hall iKit lifKin tn run a^'iiin^t any iM'ticficiury iinltMM aii), re Paijn, Jones V. Morgan (c), re Boivden, Andrew v. Cooper {d). Exceptions to o^ V. c. 10 : — " I turn to the exceptions to see whether this particular claim by the plaintiff is or is not excepted. It is not a claim 'founded upon any fraud or fraudulent hi'each of trust.' It is not ' to recover trust property or the proceeds thereof still retained by the trai^tee,' nor is it in my judgment to recover trust property or the proceeds of trust property, ' previoasly received by fhe trustee and converted to his use ' " (e). Investments by solicitor, liability for: — A solicitor in advancing money on mortgage may be employed (1) to (6) [1891], 1 Ch. 547, discussing Blair v. Bromley, 2 Ph. 354, 5 Ha. 512. (f) [1802], 1 Ch. 304, trustee expending money in educating infant. ((/) 45 Ch. D. 444 (1890), following assets; pleading 54 V. c. 19, s. 13 (M- {e) Re Gurney, Mason v. Mercier [1893], 1 Ch. 593, per Romer, J. mm i f ('■' rap. 111.] vo.yc/JA /./:/> ii;.\rit. 47M invest in a pjirticnlar iiu)rt<,m,<;(' ; ('!) to fiiiil .securities ti) lie ;i|)pi()\tMl l>y the client an^'^''"''''<'' discovered. K. S. O. 1S77, c. 108, s. 31. 3-t Win. I'v. c. 27, s. 2t». Wliat must shewn under section ■>! : — " To briniij a case within that section these circumstances must concur : — (i) there must have been a fraud ; (ii) that fraud must have deprived the plaintirt' or his predecessors in title of the estate ; (iii) such fraud must have been concealed ; (iv) the concealment must have been such that it could not, with reasonable dilij^ence, have been discovered sooner than it was in fact discovered, and, of course, must have heen within [twelve] years before the commencement of the action " (h). What constitutes fraud within this section.^ — " xt is not any and every fraud which will elide the provisions of the statute and keep alive a riprht of action for recovery of the hinds. In order to constitute a fraud which will have that eti'ect, these statutory requirements must be ful tilled. (.0 Dooby V. Watson, 39 Ch. D. 178 (1888), Mare v. Lewis, I. R. 4 Eq.21t), ub^erved upon. See further Soar v. Aslrvell [18!)3J, 4 R. tt02. ('/) lo q. B. D. 0(57 (1885). (h) Kay. L.,I., in Willis v. Howe, [1893] 2 R. 431, following Lawrence v. N'lirrevs, iiif'nt. As to pleading, .<(C Riddell v. .Strathmfjre, 3 Times, Rep. 329 ; VaiH- V. V.ane, 8 Ch. 395 ; Bosby v. Holder, 54 L. T. 298, % «i i^' 474 REAL PROPICRTY STATUTES. [R. s. 0. In the first place, it must be a fraud whicli has deprived the plaintiff of his land ; and in the second place it must be a concealed fraud, in this sense, that it was not only unknown to the plaintiff and to those through whom he derives right, but could not, with reasonable dilioence, have been discovered by him or them before the commence- ment of the [twelve] years immediately preceding the institution of his suit " (i). Whai is concealed fraud? — " Yice-Chancellor Kin- dersley, in Petre v. Petre (j), says : ' What is meant In- concealed fraud ? It does not mean the case of a person entering wrongfully into possession : it means a case of designed fraud by which a party, knowing to whom the right belongs, conceals the circumstances giving that right, and by means of such concealment, enables himself to enter and hold.' That is not an exhaustive definition, and perhaps none could easily be given of the meaning of ' concealed fi-aud.' It is not merely an ' unknown fraud,' but the word ' concealed ' seems to indicate that there are facts known to tiie person who enters, and designedly concealed Ijv liiiii from the real owner which facts, if known, wouhl cnalile the real owner to recover. The deprivation of which the section speaks in such a case is by the fraudulent entry. But that which makes a wrongful entry fraudulent is imt only the knowledge but the concealment of those facts. If they had been disclosed, and the person who disclosed them liad nevertheless entered, the entry would liave heon wrongful, but would it have been fraudulent ? The section seems to point to some contrivance by which the real owner has not merely been deprived, but defrauded, in the sense of being induced to believe that he was not owner, and that the person who so entered was owner and entitled to enter " (^■). (i) Lord Watson in Lawrence v. Norreys, 15 A pp. Cns. 220 (1800). (,/) 1 Drew, 371, 3i»7 ; 1 W. R. 13!». Cf. Dean v. Tlnvaite, 21 P.ejiv. tii'l. (k) Kay, L.J., in Willis v. Howe, [1S!»3], 4 R. 432. : |!f> X, ^,,^«^^ Cap. 111.] I'ltOOF OF VOyCKALEl) FliA ClJ. 47i Proof of concealed fraud : — In Tia'nii^ v. Buxton (I), an underground cellar occupied b}' B. under the land of A. was lield no evidence of concealed fraud. For instances of what have or have not been considered fiitiul within this section, see Sturgis v. Jlori^e{ni), Price v. Ui-ntuiton {n), Lawrence v. Norreys (o), Vane v. Vane {j)). " Due diligence " ; — Glietham v. Hoare (q) was an extra- ordinary case in which it was sought to shew that through the mutilation of a marriage registrar a marriage taking place in 172'i was not discovered until 18G8 ; and that such marriage was an important link in the plaintiti's chain of title. Notwithstanding the lapse of time the Court seriously discussed the case, and Malins, V.C., said : " The proposition that a bill can be maintained to recover posses- .^iou of land, the title to which accrued more than a century lie fore it is filed, is I must say a ver}^ alarming one, and tends to shake the security of property in this counti'y, if entertained by this Court, to a very alarming extent. But there is no doubt if the plaintiff brings himself within the protection of the law, however great the length of time may be, he is entitled to recover upon the strengtli of that title which the law has conferred upon him." In the case in (|nestion, liowever, the learned Vice-Chancellor decided that l)v due diligence the marriage could liave been dis- covei'ed long before, a certificate or register not being the bole sufficient proof of such event. (0 14 Ch. D. n[\7 (1880). Sre Ik-avan v. LuikIoii rortland Cement Co., [1^!>3], ;< H. 47, tumiol; Dartmouth v. Spittle, 1!) W. H. 444, ccihI mine : Daw- kins V. I'emliyii, f> Cli. D. 324, mere ignorance ; Kr }i. Breach, 12 W. K. Tti'.t, M ttiiij,' lip fraud on a jietition. (i/t) 24 Beav. 541 (IS.j?), 3 De (t. & J. 1, insolvent omitting property from schedule. (n) 3 Mac. & C. 48(i (1857), conveyancp by lunatic ; cf. Manhy v. I'.ewickt , ;< Kay & .T. 342 ; Lewi.s v. Thcmias, 3 'Ha. 2(!. (") 39 Ch. D. 224 (1888), also 15 App. Ca.^. 213, con.spiracy with .solicitor to (listroy deed. (y) L. R. 8 Ch. 383 (1872), concealment of heirshi|i fnun true heir. . ('/) L. R. 9 Eq. 571 (1870). Cf. Vane v. Vane, L. R. 8 Cli. 3!i0/i (1872) ; >\ illis V, Howe, mipm. -^ ^ i I ■ -Mr ■fii fi)t If u J ' : ■ ,f 476 REAL PROPERTY STATUTES. tR.8.(). Fraudulent deed remains fraudulent : — " It is olijecte'l that the plaintiff cannot succeed because the .Statute of Limitations has rendered the deed of 1873 under which possession was taken indefeasible by creditors. For that no authority was cited, since Re Madden, 27 Ch. D. 527, does not go in that direction. The e.K])ression of Bag^^'allay L.J., ' I do not see how the rij^ht can be lost by mere delfiy to enforce it unless the delay is such as to cause a statutoiv bar,' refers to sucli delay on the part of the plaintiff as would bar his right to a judgment for the debt. It does not imply that a deed which is by the statute fraudulent as to creditors is validated because it may not be attacked for ten or twenty years. If it is a fraudulent deed it romains so to the end of time, though it might not be etfectively impeachable because of purchasers for value without notice having intervened or because the claims of all creditors have been barred, or extinguished by lapse of years "(r). I'lilcs.s in till' case of linim ti'/e icircliascr for value without UDtice. Iin)). Act, ;!-4Wni.IV. c. 27, s. 2G. 32. Xotliiiig in the last preceding section ccnit.'iined sluill enable any owner of lands or rents to bring an action for tlie recovery of such lands or rents, or for setting' aside »;'.y conveyance of such lands (jr rents, on account of fraud ag.^iii>t any hmiK Jiife purchaser for valuable consideration, who hits not assisted in the commission of such fraud, and who, at the tinif that he m.ide the purchase did not know, and iiad no reason to believe that any such fraud had been connnitted. R. S. 0. 1877, '-. 108, s. 32. ^'Did not know and had no reason to believe "; — The le;;- islature meant " did not know and had not reason to believe, either by himself or some agent whose knowledge or reason to believe is by settled law deemed and taken to be his"(>). Right to re- 33. Nothing in this Act contained shall be deemed to inter- fuserelief on fgre with any rule of Equity in refusing relief on the ground of the ground of acquies- cence or otherwise. Imp, Act, 3-4 W. IV^, c. 27, s. 27. .icquie.scence, or (jtherwise, to any person whose riglit to briiii; an action is not barred by virtue of tiiis Act. R. S- O, 1S77, c. 108, s. 33. (/■) Boyd, C, in Boyer v. Gaffield, 11 O. R. r.73 (188()). (,s) .Vc Vane v. Vane, L. R. 8 Ch. iOO (1873). or reason biiiwi to inter- C^li.lll.] ACQUIESCENCE. 477 Acquiescence : — " Now, in order to constitute equitable accjuioscence it is incumbent on the party who relies on it to prove, not merely that there was some vajrue suspicion (if wrong, but that actual knowledge of the facts was Iirought home to the party to be affected by it. It is said liv a text writer (/) : — ' Actpiiescence also imputes know- ledge, or the means of knowledge, of the material facts ,!lk';,ftMl to have been acquiesced in, for a person cannot be ^aid to have acquiesced in what he did not know, and as to the claims which he did not know he could dispute.' And tins I adopt as a fair statement of the principles settled by thf mniierous cases which are referred to as authorities, particularly the Marquis of Clanricarde v. Hennincj (u), aiul Chcrter v. Trevebjun {v). In the last well-known case the whole principle upon which courts of equity give effect to lapse of time as a defence is succinctly stated by Lord Cottenham, and his judgment has always been con- sidered as remarkable, as well for a correct exposition of the law as for the felicity of the language in which it is expressiMl. In Randall v. Errlnfiton (w), Sir William Grant states the principle very distinctly as follows: — To tix acquiescence upon a party it should unequivocally appear that he knew the fact upon which the supposed iici|nie.scence is founded, and to which it refers ' " (./•). For sijjnijicafion of acquiescence : — See Bussche v. Alt ( v) ; Duke of Leeds v. Amherst {z). (0 P)r(i\vn(', on Limitations, p. oKi. (") .if) ]Vav. 175(1801). (i) 4 L. J. N. S.. Ch. 20!t, 8 .Tur. 101.5 (1844). Cf. Life Assocn. v. Siddal, 3 D. r. & .7. 72, 74 ; Marker v. Marker, !l Ha. 16 ; I'ickering v. Stamford, 2 Ve.s. .Inn. 'JSO ; Newtun v. Ayscough, I'J Ves. &;«». (((•I lo\'(..s. 428 (1805), imrcliaHe of trust property by trustee. Cf. Morse v. Royal, 12 Vi'.s. 2X) ; Walker v. Symonds, 3 Swanst." (54. (.'■) Strung, J., in Faulds v. Harix-r, 11 S. C. R. G.52 (18«(;). ■Vvalso Aikin." v. Dcimage, 12 Ir. Eq. Hep. 14, also cited in same case. (,") >"S C'li. D. 314 (1878), acquiescence before and after the fact. (:) 2 Pii. 123 (1846), proper meaning of acquiescence is not that intended l>y tlif .statute. J i ! ',11 (11 I: ( . i m il 478 HEAL PltOPERTY STATUTES. [K. S. 0. Receipt by cestiu que trufnt of part of ivhaf he is entitled to: — "We consider it to be a well established rule that ;i (■('Miti que truat who, knowing that his trustee has com- mitted a breach of trust, obtains from him a part only of that to which he is entitled, does not thereby waive his right to such further relief as lie may be able to ohtain, unless there is something in the surrounding ciicum- stances from which an intention so to do can be clcailv inferred " (a). Distinction hettceen laches and acquiescence: — "8o far as laches is a defence, I take it that where there is a Statute of Limitations, the objection of simple laclus dois not apply until the expiration of the time allowed by the statute (6). But acquiescence is a diti'erent thing; it means more than laches. If a party, who could object, lies hy and knowingly permits another to incur an expuiisu in doing an act under the lielief that it would not be objectcil to, and so a kind of permission may be said to be given to another to alter his condition, he may be said to acijuiesci'; but the fact, of simply neglecting to enforce a claim hn' the period during which the law permits him to dehiv, without losing his right, I conceive cannot be any o(|uit- able bar " {c). Laches : — " I consider it to ])e clear that in cases not within the statute the Courts will now, as Courts of E(|uity formerly did, act in analogy to the statute, ami give eti'ect to that analogy by holding the la])se of a period of time e(|ual to that which would have been a bar if the case had been within the statute fatal to a claim based upon an («) Rv Cross, Harstou v. Tenison, 20 Cli. D. V2"] (1882). (/-) Cf. Rr Baker, Collins v. Rhodes, I'OCli. I). 2;i0 (18S1) ; Three T.iwiisC'. V. Maddever, 27 Ch. D. 523 (18«4) ; Fulhvood v. Fullwood, !) Ch. 1). 17(1 (l'^'^)' Cases of legal rights whore tin? period had not lapsed. ((•) Archbold v. vSeully, !> H. L. C. 383 (IWJIV As to periods of ao|ui- escence, sic Hicks v. Coolie, 4 Dow. 17, fifty j-ears ; (Jray v. Chajilin. - l!u>^. 12t), forty-seven years; Portlock v. Gardner. 11 L. J. Ch. 313, twtiitv-tlino years ; Blake v. Gale, 32 Ch. I). 571, Tucker v. Sanger, McClel. 124, twenty years ; Swan ton v. Raven, 3 Atk. 105, fifteen years. rRKSCKM'TION IN' CASKS OK EASEMENTS. ('/) 2 Sell. & Lef. 617. (0 17 Ven. 97. (/) From the diss<>ntinfr judpniout of Strong, J., in McDnnald v. McUiiiiild, 21 _S. C. R. 2i;i(lW>2); citing also Lord Clanricard.' v. llcnninR, •'" IVav. 175, tifty-two yt'iirs from sale and thirty yearn from death of vendor; HxiK'sim V. IJihhy, 32 Heav. 221, twenty-eight yeark lapse ; Bright v. Legerton, '^■' IVav. (JO, twenty years ; Lewin on" Trusts, !»th Ed. p. 105'). .Vte further I'attisnii V. Hawkosworth, 10 Beav. 37;"), twenty-eight years. (;/l Lindsay Petrolemn Co. ^ikinner, 30 Ch. D. 1G3. V. Hurd, L. R. 5 P. C. 240 (1874), sec AUgiurd w^^^^^m i Cap. 111.] PRESCRIPTION IN CASES OF EASEMENTS. 479 eijuitiible title. And tliifs, too, in cases wliere there has been only laches in the sense of an abstinence from suing with ii mere knowledge of the right without further aci|uiescence. Horcnden v. Lord Annedcy {d), and Beck- fiird V. Wade{e), are old and well known authorities on this head'X/). Circumstances to be looked at in considering laches: — "Two circumstances always important in such cases, are, tlio length of the delay and the nature of the acts done ihu'ing the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, as far as relates to the remedy " (a). 34. No claim which may be lawfully made at the Common Law, liy custom, prescrii)tion (>r grant, to any profit or benefit t(i be taken or enjoyed from or upon any land of our Sovereign Lidy the Queen, her heirs or .successors, or of any ecclesiastical iir lay person or body corporate, except such matters or things ;is are liireinafter sjiecially provided for, and except rent and services, shall, where such jirofit or l)<>netit has been actually wkeii and enjoyed by any person claiming right thereto, withcnit iiiUrrui)tion for the full period of thirty years, be defeated or 'lestniyed by shewing only that such profit or benefit was first tiikcncr enjoyed at any time prior to such period of thirty years, liut iit'vertheless such claim may be defeated in any other way h)- w liicli the same is now liable to bo defeated ; and when such profit iir benefit has been so taken and enjoyed as aforesaid for the full period of si.xty years, the right thereto shall be deemed ulisuUite and indefeasible, unless it appears that the same was taktn and enjoyed by some cr)nsent or agreement expressly luade or given for that purjjose by deed or writing. R. S. O. 1S77, c. lOS, s. 34. C'Ttain claims not to be defeated by shewing only that the same en- joyed fur less than 30 years. Imp. Act, 2-3 Wm. IV. c. 71, s. 1. Indefeas- ible if enjoy- ed over ()0 years. ^Miil m Is 7W- .tMh 480 JtEAL I'HOPEliTY STATUTES. [H. s.o. ln'ffiiii iiKire than 20 years a^'u. Inn). Act 2-8 Will. IV'. c. 71, s. 2. Indcff^-isi- l)l() if •■njoy ♦>d over 40 years. Ripht of 35. Xo claim which may lawfully he made at the Ci minion way, or Law by custom, iircscription or t;raiit, to any way or other wat('r not o j,j^j,^,„mj^j; ^„, t,, j^„y water-course, or the use of aiiv water to b<> be (ieteatecl .,,•', c i i ' . , hv shewing enjoyed, or derived uixni, over, or froiii any land or waternf our only that it said Lady the (^iieen, her heirs (jv successors, or lieiiij,' th'- projierty of any ecclesiastical or lay j.erson or body corpuratb, when such way or other matter as herein last before nientidnori has betai actually enjoyed by any person claiming ri^dit tiiereti] without interruiition for tlie full jieriod of twenty years slmll !,»■ defeated or destroyed by shewiiij,' only that such way or (itlier matter was first enjoyed at any time ])rior to the pei-joil nf twenty years, but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeateii, and where such way or other matter as herein last before men tioned has been so enjoyed as aforesaid for the full |ieiiii(l(f forty years, tiie right thereto shall Ix' deemed absolute luiil indefeasible, unless it appears that the same was enjoyed liy some consent or agreement expressly given or made fur tliat purpose by deed or writing. R, S. O. 1S77, c. KtS, s. 'i'). Title h)/ pre!^crij)tion (iisiiiigiiishcil from bar iindur Sfdiufe of Liraitidums : — " Xo ri^-lit or title could lie acciuirod by u.ser and enjoyment for a period less tliiui forty years, and these forty years from the commencciiu'iir of the user and onjo^'ment had not expired before this action The defendants relied uj)on the cases Norton v. The London tO Xorth Western R W. Cn.. Vl Ch. 1). 268; Bohhett v. The South Eastern R W. Cn.. W Q. B. D. 424, and The Erie A Niagara R. W. Co. v. nn.<..n„<. 17 A. R. 483. These cases are, however, I think cloiulv distinguishable. They are cases decided under the pm- visions of the Statute of Limitations : ' No person shall make any entry or distress, or bring an}' action to i-ecovur any land or rent,' etc., etc., and not under the Act known as The Prescription i\ct, which was orio-inally passed as an Act for sliortening the times or periods oi prescription in certain cases : see Gale on luisements, otii Ed. p. 165 et seq., and R. S. 0. c. Ill, s. 35, under the latter of which this bi-anch of the present case falls "(A). (h) Fergu.son, J., in Canada Southern R. W. Co. v. Niagara Fall>, '--' O. R. f)4 (181I2), following Canada Southern R. W. Co. v. Lewis. lO C. L. .'. N. S. p. 241. Ca|.. Ill] HOW EASKMKM' AFFECTED BY LIMITATION AIT. 4Sl • Ju Mijkel V. Ihtijle (i), llagarty, C.J., after pointing; out the inconvenienceH that would result from subjectini^ eiiHoments to the Limitation Act, say.s : " I content myself with holding that the Ontario Act, shoiiening the period of limitation to ten years, does nf)t apply to tlie defendant's interruption of the plaintifi's right to away in alieno -^olo for this shortened period." Hoivoii eai^eriient raay he cj'tivi/aishrd vrnJer fftf Limi- hit'uni Act: — "I agree that a way over Blackacre, as an easoiuent enjoyed with and appurtenant to the possession of Whiteaci'e, will ])e barred by whate\-er bars the right to the possession and ownership of Whiteacre ; and this can, of course, be barred by the ten years' limitation; in other words, that the way so appurtcniant cannot be held or used apart from the possession of Whiteacre. This would be a case in which the right to ' land ' might cover and include 'incorporeal hereditaments' in the words of our I'rescrip- tion Acts " (j). " H>/ ciL/^tom" : — " It is needless to discuss the difficulties parties nmst be under in attemj)ting to establish a custoni ill Ontario " (A;). "Here there is no time immemorial (ii which to found it " (0- Xdfnre of cfoim !>>/ prescriplioii in (jeneral : — No one can claim a prescription in his own land (i/i). There is a diftlirence between the prescriptive right to land and to take something from the land {n). *■■ L'. C. R. (i'.t (INSK), f,,llowi-.l ill .McKay v. Bruce, 20 O. H. 7o:i (l-'.t) j. ; .'i;;Tai-tv, C..(., .'.. i>. OS. ' ivii'l HutA Co. V. Cro^s, M V. ('. li. 171 (lS7;i), H:i-arty, CT. i'i /'''. Ki.S, /// /• Aniiour. J. (w) Ci)()|K'r V. liiirhcr, \\ 'raniit. !(',• (ISIO). i-use (if pciiiiiiii,' \v:it-!ght to enjoy in respect of that tenement in or over the tenement of another person, bv reason whereof the latter is obliged to suffer or refrain from doing something on his own tenement for tlie aihan- tage of the former " {t). (o) Dyce v. Hay, 1 Macq. 305. (P) ^''. (q) Staffordshire Co. v. Birmingham Co., L. R. 1 H. L. 278. (r) Bailey v. Appleyard, 8 Ad. & Ell. 101 (1838). (s) :Manninfr v. Wardle, 5 A. & K. 758 (1836). Cf. Jones v. Ricliaid, "i A. & E. 413 ; Blewitt v. Tregoiming, 3 Ad. & Ell. 554 ; Hanmer v. Cluuice, 4 D. J. & S. «26. (<) Goddard on Easements, Amer. Ed. 2. Cf. Buzzard v. Capel, "^ l'>. & C. 145, without profit ; Ackroyd v. Smith, 10 C. B. I(i4 ; Rangeley v. Midiumi R. Co., L. R. 3 Ch. 310, there must be both servient and dominent tenfiiunts ; Hewlins v. Siiijipam, 5 B. & C. 221, easements incorporeal rights ; Holiiit'> v. Going, 2 Bing. 83, Roe v. Siddons, 22 Q. B. D. 230, the two tenements must belong to different owners ; James v. Plant, 4 Ad. & Ell. 701, effect uf unitinE; ownership in one person. I wmm^m t n Cap. Ill] PERIOD OF ENJOYMENT OF PROFIT A PRENDRE. 4.83 A novel easement cannot he annexed to propertif : — " A new species of incorporeal hereditament cannot be created at the will and pleasure of the owner of the property " (n). Instances of profits a prendre : — The right to cut and carry away litter (v) ; rij^ht to enter a close and cut down ami carry away trees (w); right to take gravel and sand t'roin seashore (x). " The property in animals, fh'te naturw, while they are on the soil, belongs to the owner of the soil and he may H'rant a right to others to come and take them by a grant of hunting, shooting, fowling and so forth ; that right may lie granted by the owner of the fee simple, and such a liTant is a license of a profit a 'prendre " (//). Period of enjoijnient of rig/d of common or profit a pi'cndre : — " If the claim had been made by virtue of immemorial user, or of a non-existing grant, as was done before the statute, twenty-eight years' enjoyment would have been some evidence ; but the late Act, while it dis- penses with the necessity of setting up such user or grant and limits proof to a thirty years' enjoyment, recjuires that that enjoyment shall be proved to the full extent "(3). " Tlie period mentioned in tl^e Act is plainly thirty years next before some suit or action in which the claim shall be brought into question " {a). (^') Hill V. Tupper, 2 H. & C. 127 (18(33). (c) Earl De la Warr v. Miles, 17 Cli. D. .'iS.') (1881). (*'■) Bailey v. Stephens, 12 C. 15. X. S. Dl (lSf)2). (') Constable v. Nicholson, 14 C. B. N. S. 230(1 SO;}). (y) Ewart v. Graham, 7 H. L. C. 344 (IS.jH). Cf. Devonshire v. O'Connor, 24 (,t, B. D. 476 (1890); Davies' Case, 3 Mod. 24(i ; Wiokham v. Hawker. 7 .M. .t W. 78 (1840). A..^ to fishing, set: Haidres, 407. (•-) Littledale, J., in Bailey v. Appleyard, S Ad. & Ell. Iti4 and liW (n) i1n:i>), explained in HoUins v. Vernev, 13 "Q. B. D. 311 (1884), see also I'li^ht V. Thomas 11 A. & E. 088 ; 8 CI. k¥. 231. («) Richards v. Fry, 7 Ad. & Ell. 70C(1S3S), following Wright v. Willi iins ni. it w. 77. ',\ r^ 4»4- HEAL PROPERTY STATUTES. [K. S. (J. Pi'oof of I'li'joijiuent of profit a prendre: — " It seems to me that in order to maintain a defence under the Prescri})- tion Act, these who set it up must first shew, if they set up a prescription /or sixty years, that they have taken or enjoyed for sixty years, a certain ri^ht, or profit, or benefit. Ri<^ht in that sense means sometliini^ a rioht to do wliicli is chiimed. . . The next fact whicli anyone wlio relies upon tlie Act has to prove is that that rijjfht, profit, or benefit which he has so taken or enjoyed for sixty years, he lias enjoyed as of ri^ht. Tlie true interpretation of tlio.sf words, ' as of rig-ht ' {h) seems to me to be that he has done so upon a chiim to do it, as having a ri<^ht to do it without . . . permission, and that he has done so without . . permission " (c). Hoiv churn may he defeated: — "It seems to bo imagined . . . that because j'ou cannot defeat a claim whicii may ha hiwfully made at the common law, by custom, prescription or grant, to any right of conunon or other profit a, prendre, by shewing onhj that such right or profit was first taken or enjoyed at any time prior to tlie period of thirty years, therefore you cannot defeat it at all. I do not find tliat stated in Lord Tenterden's Act. Tiiore is no attempt in tliis case to defeat the claim by .shewin;: only its origin, but by shewing that it never could have had a legal origin '\d). Eds/'inenfs — Woi/: — "The first class of easements, of which mention is made in the second section of the Act('i. is rights of way. This can only refer to private rights of (b) Src section US (2) (')i/ra, for tlu'si' wonl.^, " as of rif,'lit. "' (c) 15ivtt, L..T., in Karl !).> la Warr v. Miles, 17 Ch. D. rm (ISSl). Ct. Lowry V. CrotluTs, T. K. .'> C. L. W, cnjoynieut referable to afjreenient ; ^^;ll'• bnrttm v. I'aike, 2 H. it X. f!4 (lS(i7), enjoyment referable to tenancy. Fur effect of tenanfs acts in iirejiidiceof landlord'.s rifrlit.-i, >rr l'a]ien(lick v. Hriiii-'i- w.ater, 5 Kll. i»c I'.l. KWi, 177 (IS.V)). Scholes v. Cliailwiek, 2 Uoo. k It. .>"' (ISW) ; KeK. V. lUiss, 7 Ad. iS: Kll. TmO (ISMS). For evidence of enjoynunit.-f'' Connnis.sioiiers of Sewers v. (.Jlasse, L. K. ]!i K(i. l.'U |1S7-1). ((?) Cresswell, J., in Null v. New Forest, 18 C. 15. 70 (1856). (( ) Uur section ;>■"). Hi «.:» T— T (•a|i. 111.] lilllUT OF LATIillAl. SVPI'itnT TO lit'l l.hl Mi. 4So way, for it has already been nhcvvn that puhlie rights of way are not easements, and tlie law of prescrij)tion does not apjily to riijfhts of a puhlic character "(/'). ■ih' othi'r mititnnent :" — The a})parently wide sifjnitica- tion of this phrase is cut down by Wchb v. lilrd {;/), wliere Kile, C.J., says : " I am clearly of opinion that the 2nd section of the Statute meant to include only such eas-^- iiients upon or over the surface of the servient tenement ;, > are susceptible of interruption {/i) by the owner of such servient tenement, so as to prevent the enjoyment on the part of the owner of the dominant tenement from ripening into ii rif,dit." Tke rigid of lateral sapport to a hmhlimj : — The extent and nature of the right of an owner of an ancient building to lateral support of the lands, and whether sucli right (as far as it exists) is an easement within the Prescription Act, were discussed in Dalton v. Aligns (/), and resulted in an extraordinary divergence of opinion among the Judges. The final decision in the House of Lords, was that a right ot' lateral support from adjoining lands may be acquired by twenty yeai's' uninterrupted enjoyment for a building proved to have been newly built, or altered so as to increase the lateral pressure, at the beginning of that time ; and it is so 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 building. The judgment of Lord Selborne in this case is (/) (loddiinl. Law of Kasements. Anier. Ed. 138. (;/) 10 C. B. N. S. 2S3 (ISlU) ; 13 C. P.. N. S. 13, case of claim to tassago cf wind to windmill. Cf. Moimsay v. Ismay, 3 H. k C. I'^ii ; Uraiify v. Lfffvere, 4 (J. P. I). 172, i)a.s.sai,'e of air to chimneys; I'.mss v. (ircgory, :'a i.>\, interruption l>y some "reasonable mode," Arkwriglit v. (Jell, '< M. i^ W. 203, 234 (183!)). (ii 3 (J. B. D. 85 ; 4 Q. B. T). lf.2 ; (i App. Cas. 740 (ISSI). S.-.- IJackus v. ^mith, :> A. H. 341 (1880), decided while Dalton v. Angus was still before the r ■iirt-i. .SVc LeMarke v. Davies, 10 Ch. D. 2S1, as to support from other ii'iildinfi's. 1 i « 'i 1 1 !!■ r^ '' ' ^4 1 'U*' 111 i tit , iH II i 'H ,Ti Pi i ^^ 1 ■1 ;■" m till ip 4.s(j y^AVlA I'liOl'UKTV STATl'TES. [R.S.O. particularly instructive ; lii.s view l»t'inj^ that it is clear that any Huch right oi .support t(j a building, f>r pait of a building is an eauenient ; " and scuJ>lc an eaHuniunt uitliiii the Prescription Act. Wateirom'se, oneanwfj of: — Watercourse may be wscd to mean (i) the bed or channel in which water flows, and (ii), the stream or flow of water itself (_/"). The banks must In- more or less delined and the flow possess a unity nf character {k). But as soon as the water of a spring- runs into a deflnite cliannel it becomes a watercourse (/). Watercourse, meaning in the Statute: — Wy of i.iuiir Miui.isiiKh, 4.s< ti'imiit will .lotcreiito an ciiHenieiit or ri;,'lit of wiiy iimioxt'd ti tilt' too .simple of land ljo'oii;4-ing to the liiiniloi-il (/•). • Enjo'icd bu (iDif pfi'son chi.hniixj r'n/hl " ; — Si-c Tifl.-h' V. lil'OlL'll (.s). 36. No iHTscn shall acrpiire a right hy pr(,'scrii)tioii to \hr Right tn .ILK >^ and list) of light to or for any dwi'lling-houst', workshop access aiiil ii nthir l)iiil(liiig ; but thin Hection hIuiU not apply to any such i".? .". ''^ '. rip'ht which has been ac(|iiirt«l by twenty years' use before the unii aliul- hftli day of .March, IHHO. 4\i V. c. 14, s. 1. i>ii'i77, c. 108, s. 36), was in the .same case severely com- mented on by Sprag'ge, C, who said : — " I regret to ha\e to imt up(jn the statute the construction that has been put uiion it in the case of Flight v. Thomas (u). I express no iloubt of its correctness, but its effect is to reduce the time of liiiiitation from twenty years to nineteen years and a day : an effect that must be a surprise upon owners of property, and an effect that scarcely could have l)een contemplated by the framers of tlie Act. . . . The (') Bayley v. (i. W. Rv. Co., 2G Ch. I). 411 (1884), citiii},' Cravfnnl v. M'ltfatt, L. R. 4 Ch. 133. Cf. Rus.sell v. Harford, L. R. 2 Eq. .">(»7 ; Daniel v. .ViuleM.n, 31 L. J. Ch. 610. (s) 4 A. & Ell. 36it, 382 (183(>). (0 27 (Jr. 80(187!t). (") 11 A. & E. 088 (1840) ; 8 CI. & F. 231. 488 REAL PROPERTY STATUTES. [H. S. 0. 1: m im 'i ^\ 1 ! L ;*' strange effect of the enactment can only be remedied by legislation. I may be permitted to add, that it is worth consideration whether any such provision as is made by section 36 of our Act (v) is suitable to the conditions and exigencies of a Canadian town. It would scarcely ever be applicable except in towns ; and in towns the normal conditions are growth and extension. Section 36 interferes with the use which the owner of the soil ought, as a matter of right, to be allowed to make of it ; and does this to give a right to a neighboring proprietor to use windows which he ought never to have placed there, otherwise than temporarily and subject to the right of the owner of the adjoining land to use it for building purposes. The effect is to nullify the ordinary common law right of the owner of the land to use it for his own purposes." How the terms shall be calcula- ted, and what acts only shall be an inter- ruption to the pre- scription. Imp. Act. 2-3 W. IV., c. 71, s. 4. 37, Each of the respective period^ of years in the last pre- ceding three sections mentioned shall be deemed and taken to be the period next before son^e action wherein the claim or matter to which such period relates was or is brought into ques- tion ; and no act or other matter shall be deemed an interrup- tion within the meaning of the said three sections, unless the same has been submitted to or acquiesced in for ono year after the party interrupted has had notice thereof, and of the person making or authorizing the same to be made. R. S. 0. 1877, c. 108. s. 37. " Next before some suit " ; — This means next before the commencement of some suit, not next before some act or acts complained of (tf). The proviswit as to interruption may shorten per ml ;— In Flight v. Thomas {x) it was found that the statute con- ferred an easement when there had been actual enjoyment for nineteen years and a fraction, an^l tlien an interruption for the remainder of the twentieth year. ''¥^- '?-•«' »-,! (i') i.e. U. S. O. 1877, c. 108, s. .-36. (w) Sn Richards v. Fry, 7 Ad. & El, 706 (183S), following Wriglit v. Williams, 1 M. & W. 77 ; cf. Ward & Robins, 15 M. & VV. 242. (.<•) Flight V. Thomas, 11 Ad. & Kl. 088 ; 8 CI. & Fin. 231 (1841). ■^•*L.-:f'> ■Itlil Cap. 111.] SL'/iMISSIOy OR ACQUIKSCEXt'l':. 489 Interruption by whom I : — The interruption may be by the act of the owner, or of a stranger (?/), but not of the claimant himself, as by his discontinuance of user (z). It is necessary that the claimant must have some further notice of the person autiiorizing the interruption than the existence of an obstruction (((). Evidence of internvption : — See Welcome y. Upton (/>), Davies v. Willianis (c). Efect of interruption after tiventy years enjoyment : — "The result of the interruption in 1882 or 1883 by the (let'enaant, and the arrangement then made, seems to be that since that date the plaintitf nmst be taken to have maintained these pipes, not as a matter of right, but by the license of the defendant then given ; in other words the interruption which then occurred was acquiesced in for considerably more than the year which is required by section 37 of c. Ill, R. S. O., to constitute an interrup- tion within the terms of that section ; and as that section, taken in connection with section 35, only gives a party a right to an easement which has been enjoyed without int H-ruption and under a claim of right for the full period of twenty years next before the action in which it is claimed, the mere fact that the period had expired before the interruption took place is immaterial " {ch Submission or acquiescence : — In order to disprove any presumption of submission it does not appear to be neces- sary to bring an action against the interrupter or knock •lown the obstruction in the way of his user ; it seems that (V) •■<<'e Davies v. Williams, 1« q. B. 588. (-.) Carr v. Foster, 3 Q. B. 581 ; cf. llollins v. Verney, 13 Q. B. 1). 314 ; PlasUTf rs' Co. V. Parish Clerks' Co., (i Ex. ()30 ; Hall v. Swift, 4 Biiijf. N. C. 381 ; Diirc v. Heathcote, 25 L. T. Ex. 245. ('0 Seddon V. Bank of Bolton, 19 Ch. D. 4(12 (1882). {h) 6 M. & W. 53(5. (i) Siipm. ('/) Street, J,, in McKay v. Bruce, 20 O. R. 715 (1891). * m MA '■i.Wl 490 REAL PROPERTY STATUTE^,. [R. S. 0. a protest made to the interrupter (not to a thii-d person) is evidence of non-submission. " In any case it must necessarily be a question of fact — has the party interrupted by his words or conduct, submitted to or acquiesced in the interruption, or has he resisted or protested against it " (e). What al- legation by the party claiming shall be sufficient. Imp. Act, 2-3\Vm.IV. c. 71, 8. 5. What proof admit- ted for or against such allegation. 38. (1) In all pleadings wherein the party claiming may now allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient ; and if the same is denied, all and every the matters in the ne.Yt preceding four sections of this Act mentioned and provided which are applicable to the case, shall be admissible in evidence to sustain or rebut such allegation. (2) In all pleadings wherein it would formerly have been necessary to allege the right to have existed from time immemo- rial, it shall be sufficient to allege the enjoyment thereof a.< of right by the occupiers of the tenement in resjiect whereof the same is claimed, for and during such of the periods mens tioned in this Act as are applicable to the case, and without claiming in the name or right of the owner of the fee as was usually done. (3) If the other party intends to rely on any proviso, excep- tion, incapacity, disability, contract, agreement or other matter hereinbefore mentioned or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially fiUeged, and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general denial of such allegation. R. S. (J. 1877, c. 108, s. 38. Pin (din ff under the Prescript ion Act : — The old prac- tice in pleading the Prescription Act is to be found in Earl of Stamford v. Dunbar (/), where Baron Alderson mys: " It is usual in pleading a right of way to plead first, a prescriptive right ; then a right of way existing for the last forty years; then a right of way existing for twenty years ; and so of other rights under that statute." (f) Glover v. Coleman, L. R. 10 C. P. 121 (1874). Cf. Bennison v. Cart- wright, T) B. & S. 1. *<• Gale v. Abbott, 10 W. R. 748, twelve months lapse after interruption ; Tibury v. Silva, 45 Cli. D. It8, four years ; Warwick v. Queen's College, L. R. 10 Eq. 105, submission by some, not by others. (/) 13 M. & W. 827(1845). "f^"^ Cap. 111.] PLEADING PRESCRIPTION. 491 Pleading enjoyment as of right : — The words " as of riL'lit " constituted a legislative formula of which it was nt'cessary to follow the very words ; variations or omis- sions, such as the omission of " as," gave good ground for demurrer (g). Pleading, present rides as to : — The present rules affecting the practice in pleading are to be found in the Consolidated Rules {h). Matter of fact or of law : — It is not usual under the modern practice to set forth the matters at law but to state the facts in the pleading and allow the Court to decide their legal result (t). 39. In the several cases mentioned in and provided for by No pre- this Act, of claims to lights, ways, water-courses or other ease, suniption meiits, no presumption shall be allowed or made in favour or ^^^ nnjof of "Upijort of any claim upon proof of the exercise or enjoyment of enjoyment for a les.s period tliiin prescribed by this Act. Imp. Act, 2-3Wm.IV. c. 71, s. <). ^[ean ing of section 39 : — " The meaning seems to be that no presumption or inference in support of the claim shall lie derived from the bare fact of user or enjoyment for less than the prescribed number of years ; but where there are other circumstances in addition, the statute does not take away from the fact of enjoyment for a shorter period its natural weight as evidence so as to preclude a jury from taking it, along with other circumstances, into considera- tion as evidence of grant " {j). (,'/) 5 Q. B. 583 (1S44). For meaning of "enjoyment as of right," .V'''' Eiiil fit- la Wiirr v. Miles 17 Ch. D. 591 (1881), and tickle v. IJrown, 4 Ad. & Ell S'i!!, m (1830). (h) Sec Ruic' 402. ') Sec Hanmtr v. Flight, 35 L. T. N. S. 127. the right or matter claimed for any less period of time or nuinbt'i- of years than for such period or number mentioned in this Act ai< is applicable to the case and to the nature of the olaiiii. K. S. O. 1877, c. 108, s. 39. li !if. . ( /) Lord Westburv in Hanmer v. Cliance, 4 D. G. & J. (531 (1S65). Bright V. Walker, 1 C. M. & R. 211, 222 (1834). Cf. 492 REAL PnOl'KItTV STATCTES. [K. S. 0. DISABILITIES AND EXCEPTIONS. ki-'l r«'3 f i * Time dur- ing wiiicVi a party could not act not to becomimtud against him. Tnij). Act, •J-;nVni. TV. c. 71, «. 7. Terms of ytars, etc.. excluded frcjm coni- l)utation in certain cases. Imp. Act, •_'-3Wm. IV. c. 71, s. 8. 1.— IN CASKS OK EASEMENTS. 40. The time during which any person otherwise capable of resisting any claim to any of the matters mentioned in sections 34 to 3!) inclusive of this Act, is an infant, idiot, nun i>imjns mentis, or tenant for life, or during which any action has been pending and has been diligently jirosecuted until abated by the death of any ]>arty or parties thereto, sliall be exchirU-d in tli^' computation of the jxjriod in said sections mentioned, except only in cases where the right or claim is thereby declared to !» absolute and indefeasible. R. S. O. 1877, c. las, s. 40. 41. Where any land or water upon, over or from which any such way or other easement, water-course or run of water has been enjoyed or derived, or htis been held under or by virtue uf any tenn of life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned during the con- tinuance of such term shall be excluded in the computation of the said period of forty years, in case the claim is, within three years next after the end, or sooner determination of such tenn, resisted by any i)erson entitled to any reversion expectant on the determination thereof. R. S. O. 1877, c. 108, s. 41. EjfcA't of section Jfi : — " It is the intention of the Act that an enjoyment of thirty years, or twenty j^ears, sliallLe of no avail against an idiot or otlier person labourino; under incapacity, but that one of sixty or forty years shall confer an absolute title, even against parties under disabilities " (/). Tenant for life : — Section •lO and section 37 are to be read together. " The defendant contends that the two sections are to be read together, so that the period is to be thirty years next before the action, excluding in the computation of those thirty years any tenancy for life. The plaintiff says that if there be a tenancy for life during any part of those thirty years, the time of that tenancy is to be excluded, and the thirty years cannot be computed at all. We think that the defendant's construction is tiio true 1 Stif fr ) liams ik) Shelford, Re.al Property Statutes, 'Jth ed. 19, citing Wright v. Wi! js, 1 M. & W. 77. U^' Cai). Ill-] EXCEPTIONS AS TO LANDS OF CROWN. 493 one, and that if the plaintiff* chooses to reply and set up a tenancy for life, he excludes the time of that tenancy, and drives the defendant to show thirty years of enjoyment either wholly before the tenancy for life, if it be still sub- sisting, or partly before and partly after, if it be ended as in the present case " {I). Section Jfi deals luith all the iwriods, section J^l with one only: — In speaking of the corresponding sections of the Imperial Act, Lord Campbell, C.J., said : — " Section 7 exckules certain times, including that of a tenancy for life, hut not that of a tenancy for years, from the computation of the ' periods ' thereinbefore ' mentioned ' ; and a twenty years' enjoyment is one of those periods. But section S provides for the exclusion of certain other times, among which is a tenancy of more than three years, not from the periods thereinbefore mentioned but from one particular period only, expressly mentioned, namely that of an enjoy- ment for forty years. It is clear, therefore, that it was not intended to exclude them from the computation of an enjoyment for twenty years " (wi). To any inversion : — The Court refused to apply the words " person entitled to any reversion " to a remainder- man (ii). • 42. Nothing in sections 34 to 39 inclusive of this Act shall Exception support or maintain any claim to any profit or benefit to he '^'t *•" ^'•^^^** tiikt-ii (ir enjoyed from or nixjn any land of our Sovereign Lady Cr,,^^-^ not tlio ',»iucn, her heirs and successors, or to any way or other duly siw- t-aseiiii'iit, or to unj' water-co\ir8e or the use of any wati ■. to be veytd anrl Mijoyed or derived upon, over or from any land or water of our ''"'"1 ""*'■ ^■Mi\ Liuly the Queen, her heirs and successors, unless such lan. B. S24 (1842). So- Hale \. Oldreyd, 14 M. & W. 73!) ; Bright v. NValiver, 1 C. U. & R. 222. ('") Palk V. Shinner, 18 Ad. & Ell. .'574 (18.52). C'f. Onley v. Gardiner, 4 M. & W. mK ill) SvuKins V. Leaker, 15 Q. B. D. (532 (1885). The same point had bet u raii^ai iti Laird v. Briggs, 19 Ch. D. 32 (ISSl). w I iT ii 494 /iAMZ, PROPEIiTY STATUTES. [K. S. 0. situate within the limits of some town or township, nr dther parcel or tract of land duly surveyed and laid out by [iroixr authority. R. S. O, 1877, c. 108, s. 42. Occupation of soil under river : — " It was further urj,'ed on behalf of the pUxintiff that he has had a floating wharf, with a boat-house on it, for eleven years. . . . with a smaller structure preceding it going- back for twenty years, and has thus got a title by occupation. But if my view be correct this is an interference with the free use of the river, reserved to the Crown, and the right to do so cannot be acquired in that way " (o). Can there be prescription of ivild lands. ^ — "Another objection to the prescriptive right claimed by the plaiiititi" is to be found in the fact that for nearly the lirst lialf of the period down to 1882 or 1883, during which it is claimed to have been exercised, the land over which the right is claimed was unoccupied or in a state of nature. and its owners were out of the country "(jj). If I In cases of in fancy, or lunacy at the time when the right of action ac- crues then five years to be allowed from termi- nation of the disability or previous death. Imp. Acts, 3-4VVm.IV. 0. 27, s. 10 ; 37-38 V. c. 57, s. 3. 2.— 1.\ CASKS OK LAND OU KENT. 43. If at the time at which the right of any person to make an entry or distress, or to bring an action to recover any land nr rent, first accrues as in sections 4, 5, and (5 mentioned, xuch persou is under any of the disabilities hereinafter mentioned (that is t'l say) infancy, idiotcy, lunacy or unsoundness of mind, tlien ^ucli person, or the person claiming through him, notwithstandiiiir that the period of ten years or five years (as the case may Ix) hereinbefore limited has expired, may make an entry or a di^^- tress, or bring an action to recover sucli land or rent at any time within five years next after the time at which the person to whom such right first accrued ceased to be under any such disability, or died, whichever of those two events first happened. R. S. O. 1877, c. 108, s. 43. I r •: idfoot, J., in Retto v. Booth, 10 0. R. 357 (1885) ; affirmed 14 A i • ■ '■<8a7), 15 App. Cas. 188. ( .( -'WoHt, J., in McKay v. Bruce, 20 O. R. 715 (1801). !<*)'• n I£JM f m Cap. 111.] COVERTURE AS A DISABILITY. 495 Saving an to disdh'dities applies to mortr/age eases : — " It is impossible without doino- violence to the words of the statute to hold that the sjivinjT ot disabilities does not apply to any action or suit, as well in e(|uity as at law, for the recovery of land " (q). Infancy ; possessioyi by fathsr or uncle : — A father in possession for his infant son, must be taken to be in posses- sion as the bailiff of his son (r). Similarly, where the uncle entered as executor of the father's will, lie was taken to be. in possession for two infant daughters of the deceased (s). Hoiv infant may obtain title by possession : — In Re Gof(t), trustees received the rent on behalf of an infant until she was of age, when she herself received the rent. On a question of ownership being raised more than ten years after the tirst receipt by the trustees of the rent, Proudfoot, V.C., said : — " Whether an infant could acijuire the title by personal occupation need not be decided, as here the infant did not so occupy : but there seems to me no (juestion that persons assuming to possess for an infant, actually possessing, and accounting to her for the rents and profits, may thus acquire for the infant a title by posses- sion. And it is of no importance whether the possession of the trustees was rightful or not." Coverture as a disability : — The effect of coverture as a disability seems to have been removed by the Married Woman's Property Acts. Thus Boyd, C, in Cameron v. It (q) Stronj?, J., in Faulds v. H.irper, 11 S. C. R. G-'jo (18S()). Scv also //-. 2 0. K. 405 ; Kinsman v. Rouse, 17 Ch. D. 104 (1881) and Forster v. Patterson, 17 Ch. D. 132 (1881) not followed. ('•) Re Hobbs, Hobbs v. Wade, .SO Ch. D. r)r>3 (1887) ; Thomas v. Thomas, 2 K & .r. 7<(, and Wall v. Stannick, 34 Ch. D. rtl3, cited. («) Ptlley V. Bascombe, 9 Jur. X. S. 1120 ; 11 Jur. N. S. 52 (1805). (t) 8 P. R. 95 (1879). ('() 10 O. R. 220 (1890). Cf. Lowe v. Fox, 15 Q. B. D. GC7 ; Weldon v. Nt-al, 51 L. T. 289. if W ' 1 IH w % \ ^m^i % *^^ i 'fl^ 1 ir ^ i 'f v J m ^!. 496 y^JS;^// PROPERTY STATUTES. [K. S. 0. Trrt^A;ey', (u) says : — " If the old law as to the status and rights of a husband after the birth of issue, in respect of his wife's land, had been left intact by legislation, I should have been forcibly impressed in favour of the view tiiat the wife's right to recover was not affected by the Statute of Limitations. By that law it would seem that the husband as tenant by the curtesy initiate, might lease his wife's lands during his own life, and that as against him or his tenant, the wife would have no right of entry But as I have concluded that all interference on the part of the husband during the joint lives is ended by the first Married Woman's Act in the Province, this line of decision is no longer available." "Absence beyond seas ": — This was formerly among the disabilities enumerated by the Statute : it was struck out by 37-38 V. c. 57 (Imp.), s. 3 (v). Twenty years ut- most allow- ance for disabilities. Inn). Acts, 8-4\Vm IV. c. 27, 8. 17 ; 37-38 V.^ c, 57, s. 5. 44. No entry, distress or action, shall be made or brought by any person, wiio, at the time at which his right to make any entry or distress, or to bring an action to recover any land or rent, first accrued was under any of the disabilities hereinbefore mentioned ; or by any person claiming through him, but within twenty years next after the time at which such right first accrued, although the person imder disability at such tune may have remaintnl under one or more of such disabilities during the whole of such twenty years, or although the term of five years from the time at which he ceased to be under any such disability, or died, may not have expired. R. S. O. 1877, c. 108, s. 44. Absoluteness of the rule under this section : — " As was said by Parke, B. : ' It is a strong thing to deprive a man of a right who has had no opportunity of exercising it,' but the Legislature and not the Court is responsible for having done it" {tv). '" Section 44, of R. S. 0. c. 108 (x), is in terms the same as the 17th section of the Imperial Act, 3 & 4 VVm. IV. (r) 38 V. c. 16(0nt.)s. 5. (iv) Armour, C.J., in Hicks v. Williams, 15 O. R. 228 (1888). (x) The present section. ■ 1 * • lai^^M 4 ff Cai.. 111.] SUCCESSIVE DISABILITIES. 497 c. 27, and under section 17 of the Imperial Act, Doe Corby d V. Bramxton (y), was determined In this case Mary Hicks was dispossessed within terms of R. S. O. c. 108, s. 5, in 1853, more than twenty years before this action was broufjfht, and so this action is clearly barred by section 44 of the same Act ; for this action cannot be distinguished in principle from that of Doe Corhyn v. Bramaton "(z). Does section 44 olter the period for showing title : — Then^ is no enactment in force in Ontario corresponding to 37 & 1^8 V. c. 78 (Imp.), s. 1, by which forty years is substi- tuted for sixty years as the root of title. No new rule on the sul»ject was introduced by the Statute of Limitations, ?. & 4 Win. IV. {(i) ; so the period is still sixty j^ears in Ontario (b). W/iere money paid into court on expropriation : — See Ex p. Ciiamberlain (c). 46. Where any person is under any of the disabilities here- inbefore mentioned, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rents first accnies, and departs this life without having ceased to be under any such disability, no time to make an entry or (Hstre.ss, or to bring an action to recover such land or rent beyond the said period of ten years next after the right of such penson to make an entry or distress, or to bring an action to recover such land or rent, first accrued or the said period of five years next after the time at which such person died, shall be allowed by reason of any disability of any other person. R. S. O. 1877, c. 108, s. 45. No further time to be allowed for a succession of disabili- ties. Imj). Act, 3-4 W. IV., c. 27. 8. 18; 37-;W V. c. 57, s. 0. Successive disabilities . Borrows v. Elleson (e). -See Devine v. Holloway {d) : (y) 3 Ad. & El. 63 ; cf . Jumpson v. Pitchers, 13 Sim. 327. (s) Hicks V. Williams, siipid. Sm further, Fulton v. Creagh, 3 J. & Lat. 329 (1846), case of lease made by lunatic. (n) Cooper v. Emery, 1 Ph. 38!) (1844) ; Moulton v. Edmonds, 1 D. F. & J. 2.50(18.51)). {b) See Armour on Titles, pp. 27, 29. (c) 14 Ch. D. 328 (1880). ((/) 14 Moore, P. C. C. 290, retrosi^ective operation. (<^) L. R. 6 Ex. 128, successive disabilities in same persion. H.R.}'.8.— 32 498 REAL PlWPKItTy STATUTES. [R.S.((). u. 111. r.f. |! I-I' =11 Former ride as to succession of disahilities : — The oM rule as to a succession of disaljilities is thus stated by Preston : — " But if the right first accrues to a pei-son who is fit that time under a disability, the time will not befjiii to run against him till he shall be free from disability . ami successive disabilities, without any intermission, will con- tinue to him a protection against being barred by non-claim ; but any cessation of disability will call the Statute into operative force, and no subsequent disability will arrest the bar produced by the Statute " (/). A FURTHER EXCEPTION. Statute of Litiiitations excluded by words in private Ad: — See Mayor of Brighton v. Guardians ofBrightun {fj) ; Earl of Abergavenny v. Brace (h). (f) Abstracts Vol. II. ;U0 (181S). Cf. Murray v, Watkins, (52 L. T. 7ilti (1890), Statute continues when once started to run. (g) L. R. 5 C. P. D. 308 (1880). (h) L. R. 7 Ex. 145. ¥\' -i-T- &. ^ 11. S. 0. 1887, CHAPTER 112. J n^ If TT t r t=i* U, u 'FT, > i^ ! h H. S. 0. 1887, CHAPTER 112. An Act to amend the Law of Vendor and Purchaser and to Simplify Titles. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1, In the completion of any contract of sale of land made RiKlits of after the 10th day of February, 1876, the rights and obligations vendors and of vendors and purchasers shall be regulated by the following P^ oontraota niles (but subject to any stipulation in such contract to the of gale of contrary), namely :— lands. " 10th day of February, 1876 " .-—The present Act is alapted from the Imperial Vendor and Purchaser Act, LS7-1 (a). Our Act was 39 V. c. 29 (Ont.), which was assented to 10th February, 1876 (6). Length of time required for root of title: — Our Legis- lature has not adopted the provision of the Imperial Act (('), substituting forty years for sixty years as the period of commencement of title. (1) Recitals, statements and description of facts, matters and parties contained in deeds, instruments. Acts of Parliament iir statutory declarations twenty years old at the date of the i.'iintract, shall, unless and except so far as they are proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions. Recital, etc., 20 years old, of facts, etc., prima facie evi- dence. What are recitals of fact ? : — " The Legislature lias, in my opinion, most wisely provided that . . any (o)37&38V. c. 78(Imp.). {'') By a misprint'the assent is dated 19th February* 1870, in the Statutes fnr 39 Victoria. (0 .'*ee notes under R. S. O. 1887, c. Ill, s. 44. i m J' •!■ if ii. ^ 'J I' ' m 502 iJ£:^/^ PROPERTY STATUTES. [R. s. 0. pr recitals, statementb and descriptions of facts, matters and parties contained in a deed or Act of Parliament which is twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inacciirato, be taken to be sufficient evidence of the truth of such facts. What does this abstract which has been delivorcd contain ? It begins the 25th of November, 1853, with a purchase deed by which S. W. conveys to the testator in the cause, and it contained this recital, that W., that is, the vtodor, was seised in fee simple in possession of the said several pieces of ground. Mr. H. says that is not a state- ment of fact, but a proposition of law. I beg to express my opinion that it is a statement of uict, thai he was not onlj' in possession, but he was in possession in fee sinmle of the pieces of land which were conveyed. Therefore, that relieves the plaintiffs from the necessity of showing a forty years' title, because they have a deed twenty years old, which recites that the then vendor was seised in fee simple. This, in my opinion, was a perfectly good com- mencement of title. ... If you say A. B. is in posses- sion of Blackacre, that is a fact. Then you say, is he in possession for so many y^ars, or as tenant for life oi tenant in fee ? He is in possession as tenant in fee. That is a fact. I think this is a most beneficial enactment. . . . The recital in the deed of 1853 is not conclusive. it is only prima facie evidence ; but those who object ti ■ it must show that it is untrue "{0). Recital of trust deed : — A recital in a deed over twenty years old that the sale was in pursuance of a trust for sale contained : > another deed was held conclusive evidence. not being shown vo be inaccurate, that the trust deed had. not been revoked {e). id) Malins, V.C, in Bolton v. London School Board, 7 Ch. D. 7fiti (ISTS). ^'V' Wimbledon Local Board v. Croydon Rural Sanitary Authority, 32 Cli. 1>. 421 . See also Armour, on Titles, pp. 33, 34. (e) Re Marsh and Granville. 24 Ch. D. 11. Trusts of one deed recited in viemorial of anofher: — Thf^ production of a memorial of a deed of uppointnicnt reciting the trusts under a deed of trust, such niemoi-ial licing over twenty years old, is sufficient evidence of \vli:n tlioso trusts were (/). Possession mast he of the land in question: — "Tlie primary object of the statute being to simplify the prrx)!' of titles between vendor and purchaser, it is obvious tliat the possession spoken of is possession of the very land to which title is being: niade ; and the extension of the same rule to proof of title in an action gives it no larger effect, but leaves it to be read as applying to the possession of thf \t'ry land, the title to which has to be proved in thi- ne t ion "(r/). (4) The inability of the vendor to furnish tV.o purchaser with a leffal covenant to i>roduce and furnish copies of dcxjuments of title, shall not be an objection to the title in case the purchaMT will, on the completion of the contract, have'an equitable rifflit t(i the production of such documents. R. S. O. 1877, c. 1"!', s. 1. Inabilitv to furnisli covenjui"^ to profUiCf and hirnish ddcuni' nts of title. (/') /!'• Ponton and Swanston, " O. R. (!G9 (1889), Boyd, ('. IV) Patte.-s(.n, J.A., in Van Velsor v. Hughson, 9 A. R. 401 (1SS2). J C\vv. 11-'.] MEMORIALS AS EVIDENCE. r>o;i (•J) Registered memorials of discharged raortgajfe- .-hall he M-.rticient evidence of the mortgages without the prodr.ction of tl:e mortgages themselves, unless and exoei>t so far as such iiieiiKirials are proved to be inaccurate ; and the vendor siiall nut he bound to produce the mortgages unless they ajijiearto W in his jwssessicm or jxjwer. (:i) In case of registered memorials twenty years old, of (itiier instruments, if the memorials purport to be executed by the grantor, or in other cases, if possession has been consistent with the registered title, the memorials shall be sufficient evi- denuf without the production of the instruments to which the memorials relate, except so far as such memorials are proved to l>e inaccurate ; and the vendor shall not be bound to i)roduce the (iiifrinal instruments unless they appear to be in his jxissession or power ; and the memorials shall be jjresumed to contain all the material contents of the instruments to which they relate. Minior- iaN iif dis- ci larjjed iii>'i-tgage.- ^^'Inor- ials 20 ynai-' old, when, and of what evidence. KeccJTit in a convey- ance. ,:!:t-;f m 604 REAL PROPERTY STATUTES. [R. S. 0. Right of purchaser to copies. : — " The purcliaser is, in my opinion, entitled to the production of the deeds . . and if they cannot be produced, to certified copies of the memorials of such of them as were registered by memorial only, and to certified copies of such as are themselves registered " {h). Evidence in actions. Summary applications to High Court in respect to requisitions, objections or eomjien- sation, etc. Costs. 2. In actions it shall not be necessary to produce any evi- dence which, by section 1 of this Act, is dispensed witii as between vendor and purchaser ; and the evidence therein declared to be sufficient as between vendor and purchaser shall be prima facie sufficient for the purposes of such actions. R. S. O. 1877, c. 109, s. 2. See also c. 61, s. 49. 3. A vendor or purchaser of real or leasehold estate or their representatives resj^ectively may at any time or times and from time to time apply in a summary way to the High Court, or a Judge thereof in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (not being a question affectitijf the existence or validity of the contract) ; and the Judge shall make such order upon the application as to him apjiears just, l)y reference to the Master or otherwise, and shall order how and by whom all or any of the costs of and incidental to the application shall be borne and paid. R. S. O. 1877, c. 109, s. 3. " Any requisitions or objections" : — It seems that not only may the Court consider the objections actually taken by counsel for the purchaser, but also the Court may suggest objections to title and give effect to such objec- tions by refusing to compel the purchaser to complete the purchase {%). "Or any claim for compensation" : — Compensation ma\^ be given under this section even although the pur- chaser has, in ignorance of the misdescription for whicli he might claim compensation, taken a conveyance ( j ). (li) Re Bobier and Ontario Investment Co.. 16 O. R. 262 (1888), }>fr Armour, C.J., following Mcintosh v. Rogers, 12 P. R. 389. . (() Re Treleven and Horner, 28 Gr. 624 (1881), Blake, V.C. ■ (i) /ff Turner and Skelton, 13 Ch. D. l.SO (1879). Sec further, on com- pensation re Herbalt, 57 L, J. Ch. D. 421 (1887) : Aspinalls to Powell, 60 L. T. aV.-' (1888) ; Re Orange and Wright, 52 L. T. 006 (1884). • Cap.112.] QUESTION.^ AFFECTINU EXISTENCE OF COyTHACT. 505 " Affedimj the existence or validity of the contract": — The present section is intended for simple cases where there is no dispute as to the valid if ij of the contract between the parties, i.e. when the relation of vendor and purchaser is established or not denied, but where the raliditij of the vendors title is in dispute, and the parties wish the opinion of the Court on the (juestions of title that have been raised. Unless and until the contract is admitted (or decided) to be binding, the Court ought not to enter upon the (juestion of the validity of the title, i.e. ou<,'ht not to entertain an application under this section (/.). What question.'^ ivill he settled by the Court.' — The Courts have in general shewn a very liberal spirit in deciding what (juestions come within the jurisdiction con- ferred by this section ; in fact the subjects dealt with have a very wide range. We may attempt however a rough chissitication : Questions as to the reasomddeness of requisitions: — Reijuisition as to completeness of abstract (^) ; vendor's refusal to answer {m). Rifjht to convey : — Whether an heir can make good title { 71 ); or a devisee (o); or a compounding debtor (p^; whetlier vendor had right to convey (q); whether the contruct is a valid exercise of power of sale or appoint- (/.) Re Robertson and Daf?aneau, ft P. R. 288 (1882), Boyd, C, declining to f'lUdw re Henderson and Spencer, 8 P. R. -102. Sec also re McNabb, 1 C). R. 04 (1SSL>) ; re Hargreaves and Thompson, 32 Cli. D. 45!) (188l») ; re Davis and Cavcy, 40 Cli. D. t)08 (1888), fMudulent misrepresentation affects vi of cdiitrrtrt : re Handbacli and Edinondson (1891), 1 Ch. 102, misleading condition; '•( Popple and Harratt, 25 \V. R. 248(1876); rcGray and Metropolitan Ry. Co., 44 li. T. 5(i7 (1881), disputed qne.stions of fact. Bnt sec also n Landt-r and Kapley (lS!t2), 3 Ch. 41, 50, constniction of contract. (0 Re Ford and Hill, 10 Ch. D. 3ti5 (18711). (w) Re Glenton and Saunders, 53 L. T. 434 (1880). ('0 iJe Morton and Hallett, 15 Ch. D. 143 (1880). (y) Osborne to Rowlett, 13 Ch. D. 774 (1880). ip) Re Kearley and Clayton, 7 Ch. D. 015 (1877). (7) Re Harman and Uxbridge Ry., 40 L. T. 130 (1883). ■ i ii ,|W^ 50G REAL PROPERTY STATUTES. [K. S. 0. ment (v) ; whether entail barred {») ; wliether trustees properly appointed (/) ; whether title could he made by trustees (h); or an administrator (v) ; or an executor (u'). Several cases have arisen in our Ontario Courts, dealing with doubts as to the sufficiency of a conveyance by a vendor in a fiduciary position, tiie beneticiaries joining to give their assent. Thus we have had cases involving: the ability of the petitioner to convey a fee simple where he had made a post-nuptial settlement (.r); the right of the trustee and beneficiaries under a will to convey before the time fixed by the will for the sale of the property (y); the sufficiency of a conveyance by all parties interested, durini; the life of the life tenant (0); the sufficiency of the consent of two executors, where the consent of three executors was required to a sale and one executor was deceased (<0- A^ to incunihrances : — Whether vendor bound to api)ly under R. S. O. 1887, c. 100, s. 15(6); question as to a (r) Re Irish Soc. and O'Keefe, 7L. R. Ir. 130 (1S81); re Frith and Osl)orne. 3 Ch. D. 618 (187G) ; re St. Saviour.s, 81 Ch. D. 412 (1880) ; Nichols to Nixey. 29 Ch. D. 1005 (188.5). (s) Re Dudson, 8 Ch. D. G28 (1878). (t) Re Glenny and Hartley, 25 Ch. D. Oil (1884) ; re Coates to Parsons, 34 Ch. D. 370 (18"8G) :. re Walker and Hughes, 24 Ch. D. «i>8 (1883). (i() Re Wright and Marshall, 28 Ch. D. 93 (1885) ; Patten to Edmonton. 48 L. T. 870 (1882) ; re Arbib and Class, 1891, 1 Ch. GOl. (r) Re Clav and Tetley, IG Ch. D. 3 (1880) ; re Adams and KensinRton, 27 Ch. D. 394 (1884). («•) Re Tanqueray-Williaume, 20 Ch. D. 465 (1882) ; Re Whistler, 35 Cli. D. r.lU (188G). (x) Re Bingiiam and Wrigglesworth, 5 O. R. 611 (1882), application tnttr- tained with hesitation on the part of the Court. Cf. re Foster and Lister, 3G L. T. 582 (1876). [y) Givins v. Davrill, 27 Gr. 502 (1880). (:) Re Rathbone and White, 22 O. R. 550 (1892); wr re Cooke, 4 C'li. 1). 454 (1876). Cf. re Ailesbury Settled Estates (1893), 3 K. 704, as to sutticiency of conveyance by life tenant without consent of wife. (a) Re MacNabb, 1 O. R. 94 (1882). Cf. re Waddell, 2 Cli. 1). 172 (1^70) = re Metropolitan Bank and Jones, 2 Ch. 1). .{liG (1876); re Kidd and (iiksoii (IS93), 2 Ch. 69.5. (b) 4t & 45 V. c. 41 (Imp.), s. 5 ; Re Creat Xortlu-rn Kv. Co. aiil Siimltr- son, 25 Ch. 1). 788 (1884). Cai). 112.] CAN QUESTION OF RESCISSION BE RAISEI).' 507 debenture charge (c) : whether joint receipt of diti'erent mortgagees sufficient {d) ; whether receipt of married woman for legacy discharged property {c) ; vvhetlier com- mon rights existed (/). Construction of ivills : — Meaning of bequest to next of kin (g) ; whether wife took absolutely {h) ; application to Mills of rule in Shelley's Case{i)\ gift to class capable of taking (j); whether devise passed mortgages (/t-). Questions of adjustment : — Applications are admissible which petition the Court to deal with questions of adjust- ment prior to closing, e.g. questions as to adjustment t)f taxes (l). Costs of investigation of title : — Who should pay for production of documents of title (iii); who should pay for searches in the registry office {n). Can question of abandonment he raised ? — "The (jues- tion of abandonment of the contract cannot be raised on the application under section 3 of the statute " (o). Can question of rescission he raised} — "The question whetiier a power to rescind has been well exercised has often been decided by the Court upon a summons under 0) Re Homo and Hellard, 29 Ch. D. 736 (1885). ('/) Ri Parker and Beech, 56 L. T. i)5 (1880). (' ) Re Coward and Adam, L. R, 20 Eq. 179 (1875). (/) Re Bridge and Macrae, 30 W. R. 539 (1881). (;/) 8turge and G. W. Ry. Co., 19 Ch. D. 444 (1881). (//) Re Hutchinson and Tenant, 8 Ch. D. 540 (1878). (/) Re White and Hindle, 7 Ch. D. 201 (1877). (,/) Re Coleman and .Tarrom, 4 Cli. D. 1(55 (1876). (/>) Re Packhani and Mobs, 1 Ch. D. 214 (1S75). (/) Re Wilson and Houston, 20 O. R. 532 (1891). (m) Willett V. ArKente, 60 L. T. 735 (1888). (n) Re Murray and Haegarty, 15 L. R. Ir. 510 (1884). Cf. re Hetlings & -M. rton's Contract (1893), 2 R. 543. (<)) Re Henderson and Silencer, 8 P. R. 402 ; but see re Robertson and Daganeau, 9 P. R. 288 (1882). f. ? 1 ,lfff(. r ■1 a ' 1 u J" » m ^ iiini:.;pi h 1 Mil „: -1 508 /..> (1884); G. N. R. Co. v. Sanderson, 25 Ch. D. 788 (1884). (r) Hallett to Martin, 24 Ch. D. 624 (1883). («) Re Bellamy, 24 Ch. D. 387 (1883); rt Flower, 27 Ch. D. 592 (1884). (0 Ringer to Thompson, 45 L. T. 580 (1881). (m) Re Warren, 17 Ch. D. 711 (1881) ; re Cooper and Allen, 4 Ch. D. S02 (1876). (v) Whiting to Loonies, 17 Ch. D. 10 (1881). (w) Shelford's Real Property Statutes, 9th ed. p. 570. S(c ih. p. ">"l, f"r cases on English practice under this Act. i Cap. 112.] PARTIES TO APPI.ICATIOX. 509 'fhe Courts do not inean to act as conveyancing cownsel : — It is not to be supposed that the Courts are to 1)6 used on all occasions for the mere purpose of answering requisitions on title. Thus to re Bingham and Wriggles- a'orth (x) the following significant note is appended : " In consenting to entertain their petition, at the desire of both parties, the learned Judge observed that he nevertheless tlid not desire to make a precedent in practice, under the Vendor and Purchaser Act, of entertaining petitions on all questions of a like kind, as he thought he saw undesirable consequences, if all questions of title were to be settled in this way, when the existence or validity of the contract \va.s not disputed." "The object of the Legislature was to enable either vendor or purchaser to obtain the decision of the Court upon some isolated point instead of being compelled to have recourse to the whole machinery which would be put in motion by an action or suit for specific performance " ( y). What parties necessary to j)roceedings : — " The only parties who need be represented are those who would be parties to a suit for specific perfoi'mance with a reference as to title : in re Eaton Estate {z) ; and the general rule is, that all the parties to the contract should be parties to the suit, and no one else {a). The mortgagee may be a neces- sary party to the conveyance, but that is not a question of title (6). The mortgagees in this case should not thci-efore have been served, and they will be dismissed with their costs. I do not find anything in Henderson v. Spencer (c), (x) ,5 0.R. 612(1882). (y) Lindley, L.J., in re Hargreaves and Thompson, .32 Ch. D. 45!) (188(!). Cf. re Popple and Barratt, 25 W. R, 248 (1877). (?) 7 P. R. 296. (a) Citing Fry, 2nd ed. p. 62 ; sec 3rd ed. p. 73. Cf. re Naylor and Spendla, 34 Ch. D. 220 (1886) ; re TipT)ett and Newbold, 37 Ch. D. 444 (I8f;8). (h) Citing ih. 63; see 3rd ed. p. 74. (<■) 8 P. R. 402. 'W 1 'hi 610 liKAL PIIOPKHTV .STATUTES. [K. S. 0. to shew that the mortgagees should have moved against the petition. I think they have a right to take the objec- tion at the hearing " {d). "Shall make such order" : — "The only jurisdiction we have on this form of proceedings is whatever the Act of Parliament has authorized the Court to do, and in my opinion we ought not to treat an application under this section in the same way as if an action were brought for specific performance or for rescinding the contract, or for any other purpose, but we must see what is the conse- quence of that which we have decided, and whicli the Act of Parliament undoubtedly gave us authority to decide "(e). Relief to which purchaser entitled : — Accoi'dingiy, in a case where the vendor's title was shewn to be defective and the purchaser asked not only for a return of deposit but also for interest on the deposit (/) and the costs of investigating the title {g), the Court examined his riglits in the followino" manner : " Althouo-h no doubt interest cannot be given on the deposit except by way of damages, and the cost of investigating the title would not be given to the purchaser if he brought an action, except by way of damages, yet they are damages which, without any special case being made would be awarded, and properly awarded, either by a judge or by a jury in a case where the vendor could not make a good title to that which lie had purported to sell. And in my opinion this Act of Parliament authorizes us not only to make an order for the return of the deposit, but to give in addition that tm ' M (d) Re McNabb, 1 O. R. 97 (1882). (e) Cotton, L.J., in re Hargreavea and Thompson, 32 Ch. D. 4")(i (18SG). {f) Cf. re Cash and Metropolitan Dist. R. Co., 13 Ch. D. 007 (IJ-SO) : re Smith and Stott, 48 L. T. 512 (1882). ('/) Cf. re Ebswurth and Tidy, 42 Ch. D. 53 (1889); re. Bryant ai;'! Barmingham, 44 Ch. D. 218 (]8'.I0) ; re Higgins and Percival, 59 L. T, l'i:i (1888) ; nee further re Beyfus and Master, 3!) Ch. D. 110 (1888). J Cap. 112.] ORDER WHERE CASES CONFLICT. 511 wliich, without any special circumstance.s and under ordi- nary circumstances, would be the consequence if an action had been brought to recover damages " {h). 2f(iy order costs to be charged on vendoi's property : — hi re Yielding and Westhrook{i) tliere is the following brief decision : " The deposit must be repaid with interest, and the purchaser must have the cost of the summons, including his costs of investigating the title. The costs will be charged on the vendor's interest in the property. In making this order I follow the decision of Vice-Chan- cellor Hall in In re Higgins and Hitchnian's Contract ( }). If that was an innovation, I think it was a good one." The Court may order the payment of interest and decide from what date it is to be reckoned (/.;) ; and may, it seems, order the repayment of interest paid by the purchaser under protest (/). Order, ivhere former order not complied, ivith : — Wliere an order made under this Act directed the purchaser to carry out his contract to purchase forthwith, and he failed to do so, Ferguson, J., made an order directing him to carry out his contract in obedience to the former order within two weeks ; and in default for the vendor to be at liberty to re-sell, the purchaser to pay the costs of this motion, all costs of the re-sale, and any deficiency (771). Order, ivhere cases conflict : — Where the effect of the authorities is to leave the title doubtful the Court will not force it upon a purchaser (n). (/() Re Hargreaves and Thompson, 32 Ch. D. 457 (1S8()). But sec rt Davis and Cavey, 40 Ch. D. 007 (1888). (0 31 Ch. D. 345 (1886). (j) 21 Ch. D. 93(1882). ik) Re Riley to Steatfield, 34 Ch. 1). 38() (188(i), re Golds and Newton, r)2 L T. 321 not followed ; cf. re Piggot and (J. W. R. Co. 18 Ch. I). 140 (1881) ; n Hetling and Merton's Contract (1893), 2 R. 543. (/) Re Young and Harston, 31 Ch. D. 168 (1885). (w) Re Craig, 10 P. R, 33 (1883) ; Thompson v. Ringer, 44 L. T. 507 cited. (h) Re McNabb, 1 0. R. 94 (1882). But sec Osborne to Rowlett, 13 Ch. I). SI (1*80). JP|; tij . '51 r- , li? ■ ll!) I '■^1 .1 4- 512 HEAL PROPKUTY STATUTES. [U..S.(>. Ejfcct of order on r iff Id to hriyiff other action h: — The order sliould not prejudice the riji^ht of a purcliaser to l»ring an action to have a contract rescinded or to resist suit for specific performance (o); nor of a vendor to sue for specific performance {])). How far others than i:iarties before the Court are hound: — "It must be borne in mind that any sucli deci- sion does not technically bind any one else but the parties actually before the Court, and does not prevent anj'' person not bound by the decision from at any time bringinjj fresli litigation upon the purchaser with reference to the same title " {q). Scope of proceedin{ff^ under this Act : — " Whatever could be done in Chambers upon a reference as to title under a decree where the conti*act was established, can be done upon proceedings under this Act, and that what this Act has done is this : it has enabled the parties to dispense with the form of a bill and answer, and at once to put themselves in Chambers in exactly the same position in which they would have been, and with all the rights which they would have had under the old form of decree "(r). What evidence may he given : —" Affidavits may be received on any question that could have been tried in that way in the Master's office on an investigation of title under decree — as, for instance whether a good title had been shewn to a portion of the land, as in re BurrougliH etc., supra " (s). p.-i V • ■»4 ft (o) Henderson v. Spencer, 8 P. R. 402 (1881). [p) Re Boustead and Warwick, 12 0. R. 488 (1886). (q) Osborne to Rowlett, supra. Cf. re Cooper and Allen, 4 Cli, D. 827 (1870), as to binding the Crown. (r) Re Burroughs, Lynn and Sexton, 5 Ch. D. 604 (1877), cited in rf MacNabb, infra. (s) Re MacNabb, 1 O. R. 97 (1882). see re Morton, 7 0. R. 95 (1884). As to strength of evidence required, J (':il, 111'.] PURCHASER ENTITLED TO WHAT EVIDENCE. 513 What ovidenve piirchdscr entitled to denuind: — In a cast' \vl. .'I'o a title by possession was evidenced by statutory (lecUirations, Proudfoot, J., says : — "The statute for the suppression of voluntary oaths, ;j7 V. c. 37 (t), though it renders the person makins^ a false (lecliiration f^viilty of a misdemeanor, does not make the (lecliiration evidence. And it is obvious that such declara- tioiiH are not of such value as evidence under oath, for tliDUj^h the civil penalty for a false declaration is the same as for perjury yet it wants the sanctity of the oath. A luau might be ready to run the risk of punishment for a misdemeanor who would not be willing to otfend the Almighty by deliberate perjury. " Title by possession can only be proved by the evi- (Ilmicc of witnesses. And when title is being examined by counsel out of Court it is probable that these declarations, would generally be accepted as sufficient proof of posses- sion. Tlie rule in practice is not, without sufficient cause, lo reijuire the formal evidence which would be necessary in an action : Sugilen, V. Sz P. -ith ed. 417. In the {)resent case there is no suggestion of any reason for doubting the truth of the declarations. " But in a purchase of this magnitude, about .*?9,000, I cannot say that the purchaser is too exacting in requirinjj the best evidence that can be had to establish the title. As his counsel rested his objection chiefly on the ground that the evidence was not under oath, and not subject to cross examination, this objection may be obviated by direct- ing the seller to procure affidavits from the declarants, which will no longer be obnoxious to the charge of being voluntary, where the purchaser can cross-examine the deponents. If not satisfied with this, though I may think him unreasonable, the purchaser is entitled to have the. (0 Of. Canada Evidence Act, l)>ll.-i. H.B.P.8.— 33 mm Mr t*TO''; ' '''HIM '! ,^i' 614 HKAL rnOl'KltTY STATl'TKS. [U. S. (). evidence taken viva voce and have his title .sanctioTicd liy a decree. In that case I give the seller leave to inHtitute a suit for specific performance, as without this tiiere would seem to be some doubt whether he could do so after taking- proceedings under the Act ; and all costs will be rosisrved to be dealt with by the judge at the hearing. If the purchaser will be satisfied with affidavit evidence and tjie seller establishes his title, there should be no casts to either party ; if he fails to prove title the seller .slioujd pay costs " (it). "The coats of and incidental to the ((pplicaflov " :— "The costs of applications under this Act are in the discr.^- tion of the Judge, but I think the same rules should aj)})!}- as in regard to special cases under the Imperial Statute, 13 & 14 V. c. 35 : Morgan v. Davey, and it seems that in general the costs of such cases are governed by the sauie rules that regulate the costs of a suit instituted by bill ; Usticke V. Peters (v), and in that case a plaintiff succeedint,' upon a special case arising out of the construction of a will was entitled to his costs from the defendant. P"'ollowinir that case I think the defendant must pay the costs " (;/•). What "incidental" may include: — Where the pur- chaser failed to carry out the purchase in accordance with an order under this Act, and the Court on motion of the petitioner made a further order allowing a re-sale at the end of two weeks, the purchaser was ordered to pay the costs of such motion, all costs of the re-sale and any diffi- ciency {x). irA /■f. {u) Re Boustead and Warwick, 12 0. R. 488 (1886). (v) 4 K. & J. 437. (w) Proudfoot, V.C, in Givins v. Davrill, 27 Gr. 507 (1880), citing also re Mercer and Moore, 14 Ch. D. 287, 296. Generally the costs follow the event ; re Starr Bowkett Society and Sibun, 42 Ch. D. 386 (1889). Cf. rt Davis and Cavey, 40 Ch. D. 609 (1888); re Johnson and Tustin, 30 Ch. D. 42 (1886). («) Re Craig, 10 P. R. 33 (1883). I [K.S.O. ned by titnte a ! would takinj;' csorvt'd U tho iind the josts t<^ ■ should 1071 .— e discrc- ,kl apply Statute, } that in the same I Lybill: icceedinj; of a will •"oUowing B"{ic). the pur- lince with Dii of the le at the pay the any diffi- ( up. 112.] EFFECT OF MAKING PURCHASER PA Y COSTS. 515 H.ctra casta Cdtifted by Improper do. im: — Whore extra costs were occasioned by tlie purchaser niakin;^ claim on more land than was contracted for, the Court ordered him to pay tiie costs occasioned by his makin<^ such claim ; all the oth(!r costs to be borne by tlie vendors (_y). isHiire the title, make the purchdser pai/ the costs: — "Upon the (luestion of costs I do not consider tiiat, because a particular title may be one wliich a conveyancer would not recommend a purcliaser to accept without a decision of the Court, the purchaser ou<;ht not to pay costs if the Court is of opinion that a ^ood title can be made ; on the C(jntrar} the general rule is to order the purchaser to pay the costs so as to assure his title and shew that the Court entertains no doubt upon it. However in the present instance, as the difficulty has arisen entirely from conttict- ino" decisions, I make no order as to costs ; but it must be distinctly understood that that is not because I have any dor as to the title " (s). '0.9^9 where there is a fair point for discussion : — In re Metrojwlitan Dist. R. Co. and Cash {a), Fry, J., said: " There was a fair point for discussion in the present case and I shall make no order as to costs." Nor ivhere deeds invite inquiry : — No costs were given to either party in a case where the deeds had been drawn in a mode which seemed to invite inquiry, although the Court was in no doubt as to their operation and effect (6). (»/) Re Bobier and Ontario Investment Co., 16 O. R. 263 (1888), (:) Jessel, M.R., in Osborne to Rowlett, 13 Cli. D. 793 (1880). Cf. re Coward and Adams, 20 Eq. 179 (1875). (n) 13 Ch. D. 613 (1880). Cf. re Great Northern Ry. Co. and Sanderson, 25 Ch. D. 794 (1884) ; Finch v. Jukes (1877), W. N. 211. (b) Lucas V. Hamilton Real Estate Association, 2G Gr. 384 (1879). ■ •■^ R. S. 0. 188T, CHAPTER ll.j. iim . w ■■* vm E. S. 0. 1887, CHAPTER 115. An Act respecting the Custocl}^ of. Documents relating to Land Titles. i i u i* SlloliT TITLE, S. 1. iNTKIU'liKTATIOX, S. 2. Dki'osit ok nocTME.NTs, ss. ;>, 4. IldClMKN'iS TO HE NLMBEliEl) INDEXED, a. ;"). XnricE OF DEi'osrr, s. G. 1{k(;istkau's ekes, n.s. 7, 8. AND Inspection ok doci'ments, s. 0. Kkkect ok deposit, ss. 10, 11. KElilSl'KAK TO KEKl' SAKEI.Y, S. 12. KXI'ENSES OK EXECITOHS, S. VX Ke.VOVAL ok DOCIMENTS KROM CUS- TODY OK HEUISTKAU, SS, 14, 15. TTKR 3IAJE8TY, by and with the advice and consent -^-^ of the Lefrislative Assenil)ly of the Province of Ontario, enacts as follows : — 1. This Act iniiy be cited as " Tlie Ci'-i/ndi, of Titlr Dealt Alt," and shall be read as jjart of The lieiji.siry Act. 50 V. c. 14, s. 1. 2. The word " document," herein, shall be held to include the word "instrument,'' as Mi m ih t -1 518 REAL PROPERTY STATUTES. [R.S.O. Requisi- tion to be filed and receipt given. Each document to be num- bered and entered in deposit index and filed. Names to be entered in alphabet- ical index. Entry opposite re- gistered in- struments. Notice to be sent to other regis- try offices where regis- tered. certificate thereof has been registered in any registry office in Ontario, the document may be so derwsited in the office of the registrar of any registry division in which any land to which the same relates is situate. 50 V. c. 14, s. 3. 4. Uix)n every such deposit, the person depositing shall tl^. liver to the registrar a requisition in duplicate in the furm A hereto ; which requisition may include any number of docu- ments ; and the registrar shall sign a receipt uixm one of the duplicates for the instruments or documents therein mentioned, and shall deliver the receipt to the person by whom the deixjsit is made, 50 V. c. 14, s. 4. 8. (1) Upon receiving the requisition and the documents therein mentioned, the registrar shall enter every document in consecutive order in a book to be kept by him for that purposf, to be called the " deposit index " (which may be in the form B hereto), and shall therein number all deposited documents con- secutively, and shall endorse on every such document the word "deposited," with the date of dejxisit and the number of the entry thereof in the deposit index ; and shall file the .same in consecutive order according to its number; and shall also endorse on the requisition the numbers so by him placed on the documents therein mentioned ; and shall file all the requisition* in consecutive order according to such numbers. (2) The registrar shall also enter in an alphabetical index to be kept by him for that purpose (and which shall be called the " Alphabetical Deposit Index "), the number of the dotunieiit in the deposit index, and the name of every party to the docu- ment, or to the action, suit or proceeding to which the docu- ment relates, or if the same is a certificate or an affidavit, or a statutory declaration or other proof, as to the birth, baptism, marriage, divorce, death or burial of any person, then the name of such jjerson. (3) In case it appears by any certificate of registration endorsed on the document, that the same or a duplicate or a copy or memorial or certificate thereof is registered in his registry office, the registrar shall also enter in the margin of every registry book wherein the same is registered op{josite the entry thereof, the words, "See deiwsit index No. A.I).," referring to the number of the instrument in the depo. A,D.," referring to the registry office from which the ndtice is received, and the nmnber and date of the dejwsit therein, and he shall forthwith send by jwst an acknowledg- ment written upon one of the duplicate notices of tlie receipt of the notice. (3) In case such an acknowledgment is not received within fourteen clays from the sending of the notice, ilie registrar send- inj? the notice shall send another like notice, and shall repeat the same every fourteen days till the acknowledgment is received. (4) Every such notice and acknowledgment shall be post- paid and post registered, and a si'fficient sum to pay the registrar's fees and the postage and post registration an the acknowledg'-.ient thereof shall be sent with the notice. (")) All notices received from other registrars shall be filed hy the registrar receiving the same in the order in which they are received, and all such acknowledgments shall be filed by the registrar receiving the same in tile order of the receipt thereof. 50 V. c. 14, s, 6. 7. The registrar with whom the deposit is made, shall be entitled to the following fees to be paid at the time of the deposit by tlie jwrson depositing the same, that is to say : — On every requisition 20 cents. f)n every document dejjosited therewith . 10 " For every notice necessary to be sent to other registrars, (not more than one notice to any one registrar to be charged for) 15 " Necessary postage .and post registration fee on tiie notices and acknowledg- ments thereof .50 V. c. 14, s. 7. 8. The registrar to whom any notice under secti n 6 of this Act is sent, shall be entitled to a fee of twenty cents for every clocuineut, in respect of which he is to make the entries afore- said. r,0 V. c. 14, s. 8. 9. Any jK-rson shall be entitled to inspect and make or obtain copies of or extracts from any such deposited document, in like manner as in tiie case of instruments registered under tiie provisions of The Itenixtrif Act; and the registrar shall be entitled to the same fees in respect thereof, as in the case of registered instruments. 50 V. c. 14, s. 'J. Registrar's fees. Fees to fitht-r regis- trars. Depositied diicunients (ppcu to inspection. 50 V. c. 21. I mill 5 20 REAL PROPERTY STATUTE.s. [U. .S.O. n V i ill I h M Itwtfw ' »|i?! 1 ■{ Dei>()sitnot rcffistratiDU ami not to affect (locu; ini^nt as evi- deTicH. 5li V. c. 21. Deposit re- lieves from liability. Kegistrar to kci'i) safely. 5C V. c. 21. Exjiensea of executors, etc. A|)i>licatiou \vitliii\ 5 years to remove custoily . 10. The deposit of any document iiixJer tliis Act, shuil not be deemed a registration tliereof witiiin the nieanint,' uf y/.,, licgistrij Act ; nor .shall the adniissil)ility or value of any docu- ment as evidence, be deemed to be improved or affected by the deposit. 50 V. c. 14, s. 10. 11. Tlie deposit of a document under the provision^ of this Act, shall, while the same coutimies so deposited, be deeiniil ;i sufficient compliance with, and fulfilment of, any covenant or agreement theretofore entered into by any iierson, to produci-or all)W tlie inspection of the document, or the making of any copy of or extract from the same, and shall absolve any jjersou li;ihl(j for tlie production or cnstotly thereof from any further lialiility in respect of such custody t)r pnxUiction. .'")'l \'. c. If, s. 11. 12. Tiie registrar witli whom a docummt is so depusitrd sliall keel) the same safely in his office in like manner iiiiil with the same care as the instruments registereil in his office ; an I he and his sureties shall ))e responsil)le in respect thereof, in likf maimer as in resjiect of in-^trunients registered under Tic Iti'-ji-strt) Act ; and the registrar shall not i)art with tin- p,iss<>s- sicni of any such document, unle.ss in accordanec witii the order of a Court or Judge as hereinafter provided. ."lO V. c. 1 1, ~;. VI, 13. .\n executor or administrator of the estate of a deciast-.j l)erson, and a trustee of a trust estate, may reimburse hini-^i'lf out of such estate any expen--e which lie ineurs in or alimit depositing any documents v.hich may come to his possi'ssimi nr control as such executor, administrator or trustee. oO \. e. 11, s. 1:5. 14. (1) .\t any time within five years after the dejiosit of a document nndi'r the provisions hereof, any person may apply to the Higli Court of Justice, or tiie County Court of the county in whicli tlie deiiosit is made, or to a .Judge of either of the said Courts, for tile deliv(>ry of the document to.sucli person, and the Courtor Judge— tip(m being satisfied tiiat the applii:ant would. but for the de)iosit, be solely entitled to the possession plicant is inter- ested) that there are reiwonably important grounds for reinoviiii,' the document from the custody of the registrar— may direct that the same shall lie delivered up liy tiie registrar to the applicant, or to any person the CViurt or Judge may direct. Notic .f (2) IJefore making the order, the Court .] SCHEDULES. 521 (111 Tlie order may direct that all or any |iart of tlie cost.-s of Costs, the aiiplication, or of opposing the same, or in relation thereto, Iv paid l)y the person by whom the deposit was made, or hy wiiotii the a])i)lication is made, or by any person to whom notice fif the application has been f^riven and may midie such order in respect of the costs of the ap)>licant, and of tiie persons who have been notified, or who may oppose the ajiplication, as to the Court or Jiidpre seems meet. ')<) V. c. 14, s. It. 15. (1) Upon tiie delis'ery to the ref,'istrar of the order, or Delivery a duplicate thereof, within .^ix montlis after the date thereof, under order, and uiion i)a5-nient to him of the sum of tiftj" cents, he is to de- liver t>) tlu; [)erson mentii,.ied therisin the documents therein directed to be t'iven to him, taking,' his receijit, or tlie receipt of his authorized aj,'eMt therefor, and (2) Shall make an entry in tin; deposit index, oi)|)osite the entry nf the document, specifying the date of such delivei-y, and til whcui delivered, the Court or Judife by whom the order was iii;\de, and the date of the order, ;ind shall file the order anionj,' t!i^' rfpiisitions for deposit in th" order of tile dale of receijit thereof. .-jO V. c. 11, .s. 1.5. Registra- tion cf onh'r. SCHEDULE. F()U>r A. {Srrtinii 4.) To the registrar of the of I {iir we) hereby deposit with you and riMpiire you to take into your custody, jiursuant to T/if ('nslnili/ of Ti//r /tri.f.i ,lc/, chapter lb") of the I'eviied .Stat\it»'S of Ontario, 1SS7, tlie following instruments and docu- iiirnts, \ i/,. :— ■ (^- ^ •r. *r '^ t- - rt Names of all parties. ^ 7 - . S • b ^ ^ T. "*-> « ^ L. Sm t^ c ^- ^ ^ < '{ 1 'art iculiirs of registration I .'^ ~ ■: of registered instruments. I C_r -r 1 M j -" ^ ■/. ■"■ i .= r?o ^ru^ ■*-» :2 " — ^ ^ m,^ - y. r- 11 'mm 522 REAL PROPERTY STATUTES. [R. S. 0. m Dated Signed in presence of me, t« whom the depositor, and his residence and cwcupa- tion are well known. (in duplicate) ) Siprnature. (Residence) Lot Con. House No. f/- Street. (Oocupati(m) \l 1)1 ti m p > ''V 'f! :::| J. p. or Notary Public, or Mayor or Reeve, or Solicitor of Supreme Court, or Barrister. The documents above mentioned, with a duplicate of above requisitions, are this day received by nie. Dated Registrar for 50 V. c. 14, Sched. Form A. FORM B. (Sectiiin 5.) DEPOSIT INDEX. 6 C 4^ 55 .S = •*d 0/ SI » o ^ Parties. *"* .T- -*J c t< a 3 O • k< « rt 1* « ^ O - O x-S-^ In ■a(^ thereon tlio number, tlie date of filing, and the aiiiomit con- tained in the recei])t, and shall write in the margin of the registry book wherein the instrument to which the receipt lehites has been registered the words "See receipt No. ." 1 1 1- 56 VIC. CHAPTER 21. i*iM> M-. t I ' \« til w\ ml :: ''H::iH ■ S', ■ r.' :j:^H: I- . 1 J 1 ■ -t ft' ■ f i i t s \ ; "~ ■'•■•>: r 'Ir i ', »• 50 VIC. CHAPTER 21. An Act respecting the Registration of Instruments relating to Lands. [Afisented to 27th May, ISOS. SUOKT TITLK, 8. 1. InTEIU'IIKTATIOX, S. 2. KKiiisriiv oKFicK.s, ss. 3-9. HKiilsTliAHS AND OKI'l'TIKS : Al'I'DINTMENT, SECURITY OF, ETC., ss. 10-23. DlTlKH, 88. 24-28, Books of Office— to be fukni8hk1) by county, 88. •J!»-31. Tkansfer of, upon alteration in limits of the registry division on REMOVAL OF REGISTRAR, SS. 32-;u. CoriES OF, WHEN TOO OLP FOR USE, S. 35. Ahsthact indk.x, a. 36. Al.rHABETICAL INDEX, 8. 37. Instruments that may be rkgis- TEREI), S3. 3H, 3!). Proof for registration, as. 40-60. Manner of registering, ss. 61-67. Rf,<,istration of— Crown grants, a. 68. Orders in council, s. 69. AVlLLS, 88.70-71. Other instruments, s. 72. Instruments executed beforb Ist Jan. 1866, ss. 73-74. Registration of instruments in full when memorials previ- ously registered, s. 75. Discharges of mortgages, ss. 76-81. Discharge of lien notes, s. 82. Uy-laws, etc., 8. 8.3. Effect of registehin>^ or omitting to register, ss. 84-93. Unregistered instruments after grant from the crows void against subsequent registered purchaser, s. 84. Powers of attorney, s. 8.5. Wills to be RE(iisTERED within TWELVE MONTHS AFTER DEATH, s. 86. Deeds on sales for taxes, ss. 87, 88. ReOLSTRATION as notice, 88. 89-91. Unauthorized alterations in entries, ss. 92, 93. Actual notice, s. 94. Equitable liens invalid as AGAINST registered INSTRU- MENTS, 8. 9.5. Tacking not allowed as against registered instruments, s. 9;"). Registration of plans, ss. 94-104. Provisions for re-regi8tr.\tion in case of loss, etc., of registry BOOKS, 8. 105. Defects in registration, ss. 106- 109. List of patents to be furnished to registrar, s. 110. Fees of registrars, ss. 111-127. Inspector of registry offices, ss. 128, 131. HER MAJESTY, by and with the advice and con.sent of the Legislative Assembly of the Province of Ontario, enacts as follows : — i 1:1 •> I I' 't •;il ;;^'';i* ■rl 62H 7{f;jZ, J'llol'KllTY STATUTES. ['*'> Vif. Short titk*. !■ This Aot may be cited ox " 7''c Itet/iKlii/ .liV, />,-,(/• i{. S. (). 18S7, c. 114, ». 1. Oi'Ujln (Hid f/roivth of Hcnistri/ A). Tlu; Act of LSlJ,") was L'lnl.iKlicd in the Ue;;istry Act of iSljcS (c), which in turn, with its numerous amendments, has passed throu,i,di three consolid.i- tions of which the present Act, 50 V. c. 21, i.s the last ('/). Two amendments of the last .session, 57 V. cc. .'U «.v :».'), hs well as R. S. (). 1S.S7,C. 115 [<'), are to be read with the iii.iin Act, 50 V. e. 21. Tntcrpre- tiitidti. "TnstiMi- nifut."' 2. Wlit'i'i' tlu! followin;^ words occur in this Act, ur in tin- sclu'dulfs thcri'to, tli'^y nli;ill he oimstriicd in tin- innmicr lurfiii- after nu'nti()ncH (ieo. III. C. « ; ('.Geo. IV. c. 7, ss. 1!», 20 ; 10 (Jeo. I V. c. 8 ; .{ Wm. IV u. 14 : 4 Wni. IV. c. 1, s. 47 ; 4 Wm. IV. c. l(i; !» V. c. 34; 10-11 V. c. IC; 11-12 V. c. Hi; 12 V. c. 3.-); 13-14 V. cc. 53, (W. (if); 14-15 V. c. .".it; Hi V. cc. 1S2, 1S7: is V. c. 127 ; i;t V. c. 43, s. 15 ; lit V. c. i)0 ; 20 V. c. 30 ; 2(t V. c. .•.7, s. 2ii ; 22 V. c. 33, s. 17 ; 22 V. cc. 42, it5, i«t ; C. S. U. C. c. 8i( ; 24 V. cc. 21, U, 12 ; 25 V. c. 21. {h) 2i» V. c. 24, reffistration in full taking effect on and after 1st .laiicary, 18(i(J. .V(<' also 2l»-30 V. c. 43. (f ) 31 V. c. 20. ('/) .SV- 32 V. c. i) ; 34 V. cc. 14, 24, 25, 2fi ; 35 V. cc. 27, 2S, 2*1 ; 30 V. cc. (J, 17, 18, 48 ; 37 V. c. 7 ; .38 V. c. 17 ; 3f» V. cc. 7, 17, 25 ; 4(t V. c. 7, Sched A. ; 40 V. c. 8 ; R. S. O. 1877, cc. 40, 111 ; 42 V. c. 2(t; 43 \ . c. 21 : 44 V. c. 10 ; 48 V. cc. 2, 10, 23 ; 4i) V. cc. l(i, 2-» ; 50 V. cc. 7, S ; 51 V. c. li ; 52 V. c. lit ; 54 V. c. 18 ; 55 V. cc. 17, 21, 22 ; 50 V. c. 5. (e) Amendetl by 53 V. c. 31. «i 1 Cup. •-•1.] CliOWN (IR.WT. ri2i) liii'l, li'tti'f iif iittnriiry, will, (n-iiluitf of will, jfrimt of adiiiiiiis- tratii'ii. iiiuniL'i|nil rmwl liy-law, ecrtitit'iitf tif any priH^i'i-ilingH in ;iiiy Court, jured or alfected in any wisei iitfccting land ill Ontario. el) " Land " shall include lands, tenements, hereditaments, "Land." a|i|)in'tenanues and real estate. {',\) "Will" shall include probate of will, and exemplifica- "Will." tion, or notarial copies of ])robate of will and letters of admin- istration with the will annexed, and any devise whereby lands an disposed of or affected. (4) "County" shall include a ludon of counties, a city, "County" jimiiir coimty and any part of a county or counties set apart for judicial or rejjistration purposes. K. S. (). 18M7, c. 114, s. 2. ' 'I'owii (rvant : — Sei' section 0 I i' S 1 1 i '■VI 1 530 iJ£yli; PliOPERTY STATUTES. l-i; \ ; jiient of the mort^a|j;e, the assignee was held to \v,i\r priority (It). Cvrtijicate of dlsc/umji' : — See umler section 7G, infru. Ai^sti ranee : — See p. 11, .sapnt. Lense : — ^SVe under section 39, uj//'((. Jiond : — See " honds or at^reenients," infra. Release: — See "certificate of discharge,"' supra : also pp. 100 et seq. Disc/iarije : — See "certificate of discharge," f^iti>rii. Power of attorney : — See section .So as to j)o\ver of attorney (with connnission) : sections 55 et ftefi., as to registration of powers of attorney, and copies therool" as evidence; cf. R. S. (). 1.SH7, c. 97, (An Act reapectin;,^ l*ovvers of Attorney) for powers exercisable after death of constituent. lionds or (tf/reements : — Instrument includes " hoiuls or agreements for salt- nr purchase of land," and is therefor wider than the scope of the word assurance in tlie Yorkshire Registries Act, 1ls, Hiiss. Kcj. Dec. 423. (/) See Rmlgor v. IIarri«(.ii, I8!t3, 4 K. 171 ; 1 (l title of some other person is defective, does not come within the statute, in the words of the 2nd section ; (K. S. (). c. Ill) of the Act, 'every other instrument whereby lands or real estatti may be transferred, disposed "f. charged, incumbered, or atl'ected in any wise in law or ill ei I uity ' besides the specially described instruments set 'Hit in the sections." (/) .V-v(2ueen v. Registrar of MiildU-sfx, 7 ^l H. l")*! (IS^.-i). 0) 3 0. R. 7:") (1883). Civtin-ron, .1., (li.s.>j('iitiiijj and ii')t cou-sidiriii^' such a il"i.'iiiiu'nt a cloud upon tlu- titlf. m . 't H i3j|H|;: '■ ■ \ ■ iii H hit li 532 REAL PROPERTY STATUTES. [oC Vii "Lands" — Standing timber ivithin the registry htw^ : Gro\vin<^ timber is included in the definition of lands here given ; that is, unless there has been a binding sale (prior to the particular conveyances in dispute in any case), alienat- ing the trees and seveiing the property in them from the realty of which they liad up to that time forineil a part [in). Proceeds of rerd estate devised for side : — Cf. Ardcn v Arden (n). Wlu'ther description must idcntifg particidar hi nils :~ A point of much practical importance is whether an instru- ment, to obtain the benefit of the Act, must contain a particular description by which the lands affected may he identified. This point has been raised more than once, as in Russell v. Russell, \w\\ev& we find Spragge, C, saying:— "This settlement, however, does not specify the land in question, Vmt conveys to the intended wife any (meaninij, no doubt, all) of the estate, personal or real, of the intern led husband, and it is made a (|uestion whether the grantee could register this conveyance. If she could, the registra- tion would afford her all rejisonable protection. If she could not, she would be less secure, as there would be danger of the purchivser at sherifiTs sale registerini^ the sheriffs deed, and thereby cutting out her rights umler the settlement, Waters v. Shade (o). I do not know that there is any decision upon the point. The language of the Registration Act certainly points to there being a descriii- tion of particular land in the instrument to be rej^is- tered "(/>). (,H) Foi-KUNon V. Hill, 11 If. C. R. .5.3.'? (lH')-<), followinir Kllis v. (iriiiil-, »» S. (HI. Cf. Short V. RuttiHi, 12 IT. C. K. 7!l (1H.'>4) ; McLean v. Uiirtnii '2t (ir. 134 \1M7(;) ; McMillan v. Miller. 7 V. C. K. .".44. (/() 'J!) Ch. I). 702 (ISS.')), caHP under MifMles^x Act, held iio priority anm^l liy rejfist ration of niortt^.a^fe of share in proceeds of land devised for sale. t'f. Heiniand v. More, 1 Eden ;H27. (.') 2 (4r. 4.')7. (/)) Kussell V. Russell, 28 (Jr. 422 (IS.Sl). Cf. Rep. v. Middlesex, l.'»Q. B. 976. ■fVViMiW Cai.. 21.] REUltiTRY OFFICES. 533 The same point is more detiiiitely considered in a recent case, where Street, J., says: — ' Tlie lloi^istry Act, exceptinj^ in one instance, provides tor tlie registration of all instruments affecting the lands, however wide or general may be tlie description of the liuids intended to be affected. Those instruments contain- iiii^f a description so general that the lands affected cannot be identified are to be registered in a book kept for that piuticular purpose ; but the effect given to a registered instrument containing a general description diffei-s in no wise from that given to one containing a particular descrip- tion : the registration of both classes of instruments operates as notice to the world of their existence " (q). When improper description will prevent reijistra- f'lon : — "The one and only case in which a re^fistrar is forbidden to register a conveyance by reason of the ilescription of lands contained in it, is that of a convey- ance made after the registration of the plan of a sub- division, where the conveyance does not conform and refer to the plan " (r). With section 2 should be read section 38 : — *' Subject to the provisions of the next section, all instruments men- tioned in section 2 of this Act may be registered." HKGISTUY OKKICKH. 3. Tlic Rfgistry Division.s at present existing are hereliy funtiiiucd ; and whunevor any county is separated for jiulicial liiir|Mises from a union of counties, or a new county is formed »nil <.t apart for judicial pur|)oses, there shall he a separate Kf^'istry Office established therein by the Lieutenant-! loverncjr in Cuimcil, which office shall lie kept in the county town in like manner as in other wninty towns. R. S. O. 1887, c. 114, s.H. Registry Divisions. ('/) Israel v. Leith, 20 O. R. :m (1800). (r) Ih. nferring to R. .S. O. 18Sr, c. 114, \ 84 (2), now 50 Vio. c. !«i (3). •Jl. I 534 REAL PROPERTY UTATUTES. fV, Vi liookx Unit (JO ivith new Registri/ Ojtfice ;— »SVy' secti df the registry divisions of East and West Toronto. The fcirimr registrar of the city of Toronto shall, during iileasurc mwl without new appijintment, l)e registrar for the registry (livisimi cf West Toronto. 52 V. c. 19, s. S. 6. The council of the city of Toronto shall, by a(lditi(Pii> thereto to be approved by the Lieutenant-(;overiior in Council. provide in or in connection with the present regi.stry hiiildintf, or otherwise, sufficient safe and proper fire-proof otticts aii'l vaults for the registry offices for both divisions of Kast ami West Toronto, and for the office of land titles for the said city, and shall furnish the same in accordance with the imi visions of this Act and The Lund Title.i Art respectively. 52 V. e. Itt, s. 10 ; 53 V. c. 30, 8. 10. 7. (1) The registry books, and all books of inde.xes, wliicli have been kept e.\clusively for such jiart of the city cjf Toronto, hereby set apart as the registry division of East Toronto, and likewise all original memorials, all ori^fiiial du])licate8, and all deeds, conveyances and wills, and all otlur inHtruments, and all majis or plans lodged according to law in his office, and relating e.xclusively to lands within the divisi(jii of East Toronto, shall remain in the custody of the registrar of East Toronto. (2) All other abstracts index books and registry iiooks original memorials and original duplicates, and all deeds, cdii- veyances and wills, and all other instruments and maps (ir plans, affecting lands in Ixith registry divisions, shall remain and continue with the registrar of the registry division of West Toronto. . 1. ft i.v (») Campliell v. Cori)ora«on of York and Peel, 2(1 I'. C K. tW ; :•; U. C. R. l;i«(l«07). ill; Cap. 21.] RKUISTRY OFFICES IN TORONTO. 535 Ci) All wills and instruments in which there i^ a general devise, conveyance or jwwer affectinK lands in the city of Toronto, without local description, shall be regintered in the registry division of West Toronto. (4) The registrar of the registry division of West Toronto i.< hereby authorized and emjwwered to certify to all alistracts of title and copies of instruments from such books retained in his ottice, and affecting lands in the registry division of East Toronto, and ho is to i)ennit searches to !>• made therefrom, whenever required so to do, upon being paid the ordinary fees. (.")) The present senior deputy registrar shall lie the abstract clerk of the two divisions, during the pleasure of the Lieutenant- tnivernor, and shall i>erform such other duties as the Lieuten- ant-fiovernor may direct. His salary shall l)e paid by the two registrars, one-half each, or in such other projxirtions as tlie Lieutenant-Governor may from time to time direct. (0) The Master of Titles is to be at lil)erty to ins{»ect, by himself or his clerks, all books and papers in the said ottices for !iis own infonnation as such Master, without payment of fees, subject to any general rules to be made under the autiio- Rev. Stiit. rity of The Land Titles Act. 52 V. c. 1!», s. U. c. IIO. lieijisfry Ojfices in in Toronto: — The division of the oftice.s in Toronto ha.s tended to make searches more e.xpensive. Thus if one searched an abstract index and four numbers in the old office he paid twenty-tive cents. It' now he search the abstract index in tlie East, and find his four numbers stored in the Western Division, he pa^s twenty-tive cents for the abstract in the East and five cents apiece for the four numbers in the West, — a possible tlitiorence of twenty cents. The result is that now one sometimes makes one search and pays for two, where formerly it was not impossible to make two searches and pay for one. 8. Where the Registry Office in any division ap))ears to the Lieutenant-Governor in Council to l)e inconveniently situatt^d, lie may by proclamation order the same to be removed to any other pliice in the division. R. S. O. 1887, c. 114, s. 4. Removal of refjistry ojfice : — See Frazer y po.litij ofStorniont (f). Registry ottice may be reniiived, Nun i Cl- (0 10 U. C. R. 80 (1853). 336 HEAL PROPERTY STATUTES. [50 \-ic li ''X 'II -11 .il'l n County Councils to jjrovide fire- jJiMof ofticfjs iind vaults. 9. For tfte safe-keeping and protection of all iMioks, mi-in i- rials, diiplicatos, and other instrunientH (jf wliatever descriiitidii, and j)lan.s, belonging to the office of Registrar, tlic eouncil cf every county where, at any time there are no sufc and projjer fire-proof offices and vaults jirovided by the ci.iuicil or where hereafter any Registrj- Office is established, sluUl provide, furnish and maintain, and keep in good rei)air, a snff. and fire-proof Registry Office, fire-proof vaulted, uiK)n a [liiui and on a site to be approved by the Lieuteuant-Cidvcnior in Council ; and the said coinicil sliall keep the said Registry Office funushetl with fuel and furniture and in go(Kl repair, and towns separated from counties for municipal i)ur|«is(s, and cities in which no separate Registry Offices exist, siiall bear a ratable proportion of the exjHMise thereof, based (jn the assessment of all the munici])alities within the jiirisdictinn of the county. R. S. O. 1887, c. 114, s. 5. Duty of county council, Itow enforced: — A mandanius will lie to compel a county council to comply with the pro- visions of the present section ( tt). While the registrar may with the aid of the courts, compel the compliance of the county council, he cannot, when he provides an office himself, in case of the council's neglect, make the couiitil chargeable with rent (v). For dispute between county and city as to expenses of fitting up registry office, we Municipality of York v. Mayor of Fredericton (iv). Registrar. Rciris- tvnivt, how ajipointed, etc. 10. Every Registry Office shall be kept by an officer to b>e called the Registrar. R. S. O. 1887, c. 114, s. G. 11. The Lieutenant-Governor shall, as occasion may require from time to time, by commission, under the (Ireat Seal of the Province, appoint a fit jKirson to the office of Registrar, mid shall, in like manner, fill up any vacancy occurring by the death, resignation, removal or forfeiture of office by any Regis trar, and every Registrar heretofore apjwinted or hereafter U> be apix>inted shall jhold office during pleasure only. R. S. 0. 1887, c. 114, s. 7. («) See Regina v. Northumberland and Durham, 10 U. C. C. P. .^StJ (ISGl). (I)) Ward v. Northumberland and iJtirham, 12 U. C. C. P. 54 (1862). *' further Frazer v. Municipality of Stormotit, 10 U. C. R. 86 (1853). (u-) 29 N. B. R. 662 (1884). if. I Cap. 21.] TRUST FOR SALE-PAYMENr OF DEBTS. 537 "During pleasure only": — A <|Ucstion was raisetl in Hanuuond v. McLay {y) wliethcr the appointment of a rt'i^istrar "during pleasure" and liis subseijuent removal were valid. And it was urged that an incumbent could be removed only I'or the reasons and in the manner pointed out by the Statute. The present section makes an incum- bent "hold office during pleasure only." 12. 'i'lif Lii'Utciiiint-iJoviTiior niay from time to time by Aniount Order ill Council tix ami deterniine the amount of the security "■ security to \>e jfiven, as hereinafter mentioned, by each Registrar ; but " K • • tlie iuuouiit of such security shall be not less than §4,000, nor more than ?10,000. R. S. O. 1887, c. 114, s. 8. [As to security of Reyistrars in, the Unorganized Dis- irids. t\ie R. S. O. c. 91, a. 36.] 13. (I) Subject to the i>rovisioni? of section 24 of Th/". Act i(i}iectiiifj I'ul'lio Otfici'm, before any Registrar is sworn into ortice, he shall execute ami enter into a joint and several covenant in duplicate with two or more sutticiont sureties to be approved by the Lieutenant-Governor in Council for such amounts as may be fixed and determined by Order in Council in tliat behalf, as aforesaid. (2) Such covenant may lie in the fonn of Schedule A to this Xct, or to the like effect ; and to each of such covenants shall Ik' attached an atfidavit in the form of Schedule B to this Act, or to the like effect, made by each of the .sxireties therein mentioned. (3) One of the duplicates with the affidavits .-vpiiended shall lie forthwitli transmitted to the Provincial Secretary, to be by liiiii retained, and the otlier duplicate with the aftidavits afore- siiil.sliall be by the Registrar forthwith tiled in the office of the f'lcrk of tlie Peace for tlie said county or unitin of counties wliere tile same sliall remain of record. R. S. O. 1887, c. 114, Security to be given by Regis- trars. Rev. Stat. C. 15. The bond uvder t/tls sertion does not secure mnnici- jiiilify: — "The result seems to be that the bond given under section 9 nmst be taken to be restricteil to the per- formance by the Registrar of the duties imposed upon him, other than the duty of paying over to the munici- (.'/) 2(i U. C. R. 434 ; 28 U. C. K. 403 (18G9). ■V ^n- 538 REAL PROPERTY STATl'TES. f5«; Vi pality the prescribed portion of his fees ; and that if an interested municipality should desire to have securitv for the moneys payable to it by the lleedient, or both, and in (lefmilt thereof shall be subject to the penalties mentioned in section 25 of this Act. R. S. O. 1887, c. 114, s. 10. 16. Any i^erson may e.xamine and obtain a copy of the Rp. gistrar's covenant and affidavits on payment to the Clirk of tlie Peace of a fee for the copy and search, of one dollar, or for the search, of twenty-five cents. R. S. O. 1887, c. 114, s 11. 18. Sections 15 to 20 inclusive of The Act )ys/jirti,i;i l',ii,lk Oflhrrs, shall apply to securities given by Registrars. R. S. (). Rev. Stat, c. \.\ ss. l."» tUs^^urities. l^"' c- H-*. «• 12. *<' also R. S. O. c. 15, ss."24-'.'7 Lieuten- ant-Gover- nor may re- quire Regis- trars to give security. 17. The Lieutenant-Governor, u|x>ii the applicutioii of any county or city interested, or without such application if lie thinks fit, may require .any Registrar to give security in such form and for such an amount as the Lieutenant-tiovenior in Council determines to be sufficient to secure the due payinenl of any nKJiieys payable by the Registrar to the ct)unty or city. R. S. O. 1887,c. 114, s.13. Sureties of Regis- trars, 18. (1) A surety for a Registrar who is no loiigi^' di-(i>o.st(l to continue his resjHmsibility, may give notice thereof to tl;i' Registrar and to the Provincial Secretary, and in such case tlie Registrar shall, under jn-nalty of forfeiture of his office, furui»li a now surety in lie\i of the surety so giving notice, and >liiill complete and transmit the necessary covenant in that beluilf tu the Provincial Secr«'tary within one numth after the notice, ami shall procure the approval of the new security witliin twn months after the notice. (2) All accruing resiionsibility on the part of the |)ers(in giving the notice shall continue until the perfecting and approval of the new security, and shall thereupon cease. R. S. O. 1887, c. 114, 8. 14. (z) Street, J., in County of Middlesex v. Smallman, 19 O. R. 351 (18!H)). mm^ I , 1 Cap. 21.] LIABILITY OF SURETIES. 539 ,cnu)r 111 19. The Registrar and his sureties shall be jointly and sever- Liability ally liable on their covenant to anv agsfrieved iierson or jk' rsons "' Ke^fiN- .,.,,. ^. . ■ , , i. • 1 trars and til indemnify him or them against any damage or loss sustained their sure- liv him or them, l)y or through the neglect or misconduct of the ties. Registrar or his deputy in the i)erfonnance of the duties of his uttice, not exceeding the ]>enalty named therein, but this pro- vision shall not e.\enipt the Registrar from any further rtsixm- sibility to persons sustaining damage or loss as aforesaid. K. S. O. 1887, c. 114, 8. 15. Liability of sureties .-—The law enunciated by section 19 seems to be similar to that followed in some of the American courts, and thus expressed by Throop {a) : — " Tiie sureties of a registrar of deeds, county clerk, pro thonotary, or other officer having charge of public records, are liable to the person injured, for a false statement in a certificate given by the officer, upon the requisition of such person, respecting the existence or non-existence of records of conveyances, judgments or other liens, affecting property which is the subject of inquiry ; or the contents of such records {h). And it seems to be immaterial whether there is any proof of payment of the officers' fees (c). So where the clerk is required by statute to note in the margin of the record of a mortgage, the payment and canc<'lment of the mortgage, if he falsely makes such a note his sureties are liable to a purchaser for the amount necessarily paid to relieve the property from the incumbrance {d). But one who fails to make the proper inquiries, from the clerk or the vendor, cannot recover " {e). " Any further responsibility " : — " The covenants of the defendant given under the Act do not in any way inter- ((() Treatise on the Law relating to Public OftictTH (I8!I2), «. 248. (t>) Citing Fox v. Tabault, 3.S La. Ann. 32 ; Smith v. Holmes, 54 Mich. 104 : McCaraher v. Cotnin., 5 ^\^ltt8 & S. (Pa.) 21 ; Ziegler v. Comm., 12 Pa. St. 227. " But he is liable for such negligence only to the jH-rson for whom the w-arch was made," Day y. Reynolds, 23 Hun. (N.Y.) 131 ; Savings Bank v. Ward, 100 U. S. 195. " (' ) Citing Ziegler v. Comm., 12 Pa. St. 227. {>') Citing Appleby \ . State, 45 N. J. L. 161. AW State v. Davis, 00 Ind. ''?!', 117 Iiid. 307, where damages nominal only. (') Citing Crews V. Taylor, D») Tex. 401. ■ (: 540 y.'A'.IA I'lWI'EltrY STATUTES. D'Ki Vi.;. Mm w \mMm ni.[ sjH III iV're with the right of any party a<,'ifrieve(l to nmintnin un action a<^ainst him for any neylect of his duty "(/). I{('^:iHtrar's ' lat li (jf tittice. Aj^xMnt- lllt'Ilt of Deputies. Removal. Power of Deputy in (■use of death or removal ( if Kegistrar. Deputy's oath of ottice. Registrars or Dep\ities, etc., not to act as agents for jR'rsons talcing secu- rities on real estate, or ail vise as to titles, etc., ill their Counties. Registrars not to engage in certain call- ings. 20. Every Registrar, before he enters ujKm the exetution (.f his office shall, before two or more tfustices of the Peace for the county, take the oath given in the form of .Schecluli; C. to this Act, which shall be transmitted to the Provincial Secretarv, together with the reu(jgni%ance and covenant aforesaid. K. .S. (), iHsr, c. 114, s. k;. 21. The Registrar may by writing binder his hand and hji seal of office, nominate a deputy or deputies in his office, wlm may perform all the duties required under this Act, in the same manner and to the like effect as if done by the Registrar ; and any Registrar may remove his deputy and aiUKiint another in his place whenever he thinks it necessary ; and in case of the death, resignation, removal or forfeiture of office of the Regis- trar, the Deputy Registrar, or in case of there being more than one, the senior Deputy Registrar, shall do and i)erforni all and every act, matter, and thing necessary for the due execution of the said office, until a new app(jintment of Registrar is made by tlie Lieutenant-Ciovernor. R. S. O. 1887, c. 114, s. 17. 22. Every Deputy Registrar before he enters on the execu- tion of his office, shall, before two or more Justices of the Pence for the county take the oath apiK)inted to be taken by the Registrar, or an oath to the like effect, which oath sliall Vie forthwith transmitted to the Provincial Secretary. R. S. (J, 1887, c. 114, 8. 18. 23. (1) No Registrar or Deputy Registrar or clerk in his office shall, directly or indirectly, act as the agent of any ciir|«»r- ation, society, company, jierson or persons investing money and taking securities on real estate within his county, nor shall the Registrar or Deputy Registrar, or clerk in the office advise, fur fee or other reward, or otherwise, uiwn titles of land, or pratti-e as a conveyancer, within his county, nor shall he carry on ur transact within the Registry Office, any other business or oecii- ]>ation whatever, uiwn pain of forfeiture of office. R. S. (J. 1887, c. 114, s. lit. (2) No Registrar hereafter apjwinted shall practice for gain as a barrister, solicitor, physician or suigeon ; nor shall any Registrar heretofore ap|M>inted, where the net income from his office is more than 81,000, nor shall any Deputy Registrar or clerk in the office of the Registrar, carry on a practice as a f ' 1 (/) Cameron, J., in Bruce v. McLay, 3 O. R. 23 (1883). See notes to s. 25 infra. Cup. 21.1 ItUTIKs OF REGISTRARS. m Iiliysiciivn or MurRt'on diirinf? office hourH otluT than i\ coiiHultiii^f priiLtict;, oi' out of ottic*) lioiirs otht-r than a cunsultin^f or ottit'c priictii'n at hi.H homo, nor take any proceedin)? nnch^r tlie |io\ver (if sale in any inortKai^e or other instrument atfectiniif hind either an solicitor or axent, Jior shall he |K'rsonally or as a member of a tiriii carry on a loaning' Imsiness or l)e in any way connected with any firm having business to transact in the office of such Kcfistrar. (.'{) Tlie work of the registry office shall lie conducted and carried on in all cases under the direction and immediate supervision of the Registrar, whether heretofore or hereafter appointed. Work in registry of- fice to l)e l)ersonally conducted by registrar. Df'imfi/ rcf/istrar actlvr/ as coweynncer : — Where a deputy registrar luid clone business for many years as a t'ouvcvancer, for his own benefit with the knowledi^e an to \Mvy all (luiniigcM, witli foil cohIm of Huit, to my |h ix.n injun-(l thcrt'hy, to Imi n-cowrcd liy iiction in thf Hiffh (Jdurt ; anfi liny (lf|iuty »ixi'CutinK the oHiw of Il«(;irttrar and liii Hurotioi aro in tills .sect ii in (hiclart'd U> l)« liablo. It. S. O. 18«7, c. 114, h. 21. Cdse of improper reifistry, HdJfllif}/ of rerjistrdr : — A case whore a ro((i.stmr had improperly, but in j^oixl faith, rej^i.stered an instrument not within the Act, j^ave occasion to Chief Jn.stice Ha<,'arty, to consider the liahiHty uf re<^istrars in cases of this sort ; he says : " I do not consider that the re<^istrar w»vs a noceH.sarv party to tiiis suit. The rej^istration of this decree woiiM be sufficient for the removal of the allet^ed cloud upon the title, but we have also to consider whether he is a proper party. " The learned Judije has, I think, stated too broadly thi- rule as to a registrar's liability. He may he liable for acts done or omitted in the execution of his office, although such act or omission did not require the allegation or proof that it was done ' maliciously and without reasonable or probable cause.' " He is liable for acts or omissions causing damage although arising wholly from negligence or mistake. " Proudfoot, J., has dismissal the Bill as against the registrar and directed the plaintiti's to pay liis costs. I am reluctant to interfere in a matter merely as to costs, but I am compelletl to review this decision. It appears to me that the plaintitts had the right to make the regist i ar a party, although they were not bound so to do. They com- plain of a wrong being done and prove its being done by the three defendants. The law seems clear that all concerned in the commission of an actionable wrong may be proceeded against as principals. I may refer to such cases as Cvanrh U, ■ u :1* Cup. 21.) IMrnoPKR RKdlSTRY 54M V. }yhit(\ 1 Binin on Parties, 25S. " I have no tloubt as to the ro^jistrar havintjf acted in "•ooil faith to the best of his jud^^iiiei,' He erroneouslj', as we hold, phiced this document on the records, and it seems tn me that we cannot deny the phiintiH's rijjfht to proceed ii^^ainst him as well as the other defendants. We treat it as ii wronjjj done to plaintiffs in placinj; an improper docu- ment on record against this property ; and all concerned in placint; it thei'e may he treated as ])rincipals. In this \ lew I do not see how plaintifi's can he directed to pay the registrar's costs, thou<^h we should not interfere with the li'iuni'd Judj^e's discretion in refrainin<,f to j^ive costs a<^ainst l>ini (A). In the same case, and touchin*^ the same topic, we have also the followini; judifuiont by Armour, J. : — "I think all the ih'fcndauts were ])roperly made parties to this action. If tlu' rei;istrar wronjjly obliterates from the ret^ister a part of my title to a lot of land, surely an action will be aj^ainst him for the removal of the cloud he has thus placed upon my title, and for a proper declaration which will supply the place of the obliteration. If others assist him in doiny; a like wronn^, or he assist others in doing it, surely the action will lie against all of them ; they are all eijually wrong- doers. If the registrar, of his own motion, wrongly places something upon the I'cgister against my title to a lot of land which he has no right to place there, surely an action will lie against him for the cloud he has thus placed upon my title, and for a proper declaration doing away with the eH'ect ot such wrongful act. If othefs assist him in doing a like wrong, or if he assist others in doing it, surely the action will lie against them all, they are all ecjually wrong- doers "(i). (/') Ontario Industrial Loan Co. v. Lindsay, 3 0. R. 75 (1883). (0 Ih. at p. 6«. if. J Si !•'♦» * 544 { ii A \ REAL PROPERTY STATUTES. [■">« Vic Llahility of registrar for omisaion to make entry hi abstract index : — " There is no doubt the defendant made a slip in not entering an abstract of the will in the abstract index, and would be liable to any one suffering damaj^e in consefjuence of such omission "(j). Registrar's liability is to those who pay him fees:— The most cogent evidence of privity with the registrar so as to fix him with liability for neglect, is to prove that the party complaining of the neglect has paid fees to the registrar. " The registrar is entitled to be paid by every person making a search, and the duty of keeping his books correctly is, while in one sense a public duty, for the benefit of those who make searches and pay fees for so doing ; and liability for breach of such duty must be confined to those directly injured. Were it otherwise, when would the liability cease ?"(/>;)• Qiuiere as to rights of person in privity with payer of fees : — " In adopting this language in reference to this case it is not necessary to say what the effect of a registrar giving a certificate of the registration respecting a paiticu- lar lot, would be upon his liability to a third person dealini,' with the pereon to whom the certificate was granted upon the faith of it, and suffering loss in consequence of an error therein "(I). Measure of damages: — A registrar, in giving the plaintifi' a certificate of entries on a lot, omitte7. (k) lb. at p. 474, following Penntiylvania v. Hamier, 1 Local Courts Gazette, 108. Cf. State v . Harris 8!» Ind. 303 ; Harrington v. Ward, 9 Mass. 151 ; Buller v. Kent, 19 Johns. (N.Y.) 223. (I) lb. at p. 475 ; cf. Throop on Public Officers, section 742. 1 Cap. 21.] LIABILITY OF REOISTRARS. 545 and realizing a profit on the whole transaction. A jury awarded him $500 damages against the registrar, and the Court held the amount reasonable, as the plaintiff' had suffered damage just to the extent of the prior mortgage {m). But where a purchaser had notice of the omitted mortgage it was held that he could not make any claim against the registrar in respect of payments ma'le by the purchaser after such notice ; and the registrar who, on finding his mistake, had bought up the outstanding mortgage waa held entitled to foreclose the same {n). Similarity of lidhilitij of registrar ivit/t tluU of cufcnt for inrestment: — In Sedgwick on Damages (o) the above, cited case of Harrison v. Jiretja is one of the authorities relied upon for fixing the liability of an agent for invest- ment who fails to find an incumbrance: and thei-e soems. every reason to believe that a registrar making a similar default should incur a similar liability. The rule in Sedg- wick is thus stated : " An agent to invest monev in a mortgage, who fails to find a prior incumbrance which is on the land is liable for the loss that results. If the principal discovers and removes the prior incumbrance, the measure of damage is the amount paid to remove the incumbrance (/)), even though part of the land covered hy the mortgage was not subject to the prior incumbrane(i (>/). But if the principal does not discover the existence of the prior incumbrance until the land is sold to satisfy it and lost to him, the measure of his damages is the amount of his loan " (r). I '^m -j «fi< i }m {ill) Hivrrison v. liragii, 20 U. 0. R. 324 (18C.1). ,**•« Ilainiltoii v. Lyons, 5 0. S. r>03, damages iiiul«r 35(}eo. III. c. H, s. 10. (ii) Brega v. Dickey, IG (Jr. 4'M (IStW). (o) 8th Ed, section 830. (/') Citing McFarland v. McCWs, 17 W. N. 0.54"; HurriHon v, Brega,. .iiijini. h) Citing Whiteman v. Hawkins, 4 C. P. D. 13. (r) Citing Sheplierd v. Field, 70 111. 43«. U.K. p. 8. —35 546 REAL PROPERTY STATUTES. [5fi Vic. Are costH indirectly occasioned by registrar's mistake recoverable as damages? -iiee Harrison v. Brega (8),/in/t- hall V. Connolly (t). How far reglMrar entitled to notice under R. S. (}. 1887, c. 73, s. 1^ : — Generally speaking, it is advisable to give a registrar notice of action, but this does not appoju- to be necessary in case where a municipalit}'^ is suiu"- a registrar for fees which he has neglected to pay over under sections 119, 120 : " This objection that he was not served with notice of action is equally untenable. He is sued for not paying over money which under the Act he was hound to pay to the plaintiffs, not for doing some act which has occasioned an injury to the plaintiffs, that he was required to do in the performance of his duty ; and so is not witltin the protection of sections 1 and 20 of Chap. 73, R. S. (). : Ross V. McLay, 40 U. C. R. H'A ; McLelsh v. Houurd, .'} App. 503 " (It). Special remedies against a registrar ; — Proceedings in the nature of a quo ivarranto may be taken against a person wrongfully occupying the office of registrar ('•); mandamus will lie against a removed officer to compel him to deliver up his books (w). For remedy by seizure and proceedings by fine and imprist>nnjent, see sections 38, 34, infra. Indictment against registrar and deputy for mis- demeanor: — See Regina v. Benjamin («•). (a) 20U. C. R. 324(1801). (t) 3 Keyes, 57, cited in Sedgwick on Damages, 8th ed. s. 'AW. {u) Cameron, J., in Bruce v. McLay, 3 O. R. 23 (1883). Cf. Harri»on v. Brega, 20 U. C. R. 324 (18G1). (r) M-Throop. Ch. XXX. {w) Si'e ib. section 787, for cases where replevin will lie. See aUo Hi. s«'C- ti(m 8;<3 f(»r cases where wia/M/awM* will not lie against registrars to coinjiel cancellation of r ftico from the hour of ten in the forenoon until four in k' afterncHm evtry day in the year, holidays excepted and no iiistrunient shall Ikj registered by him on any holiday, nor shall any instru- ment be received for registration V)y him, except within tiie iiours alx.ve named. R. S. O. 1887, c. 114, s. 2-_>. (2) Provided that the Registrars for the east and west divisions of the City of Toronto and for the County of York, (>r their resjiective deputies, shall attend at their ottices for the transaction of business on Saturday, from th • hour of ten in the forenoon luitil one in the afternoon, and n'l !•. nger, and no instrument shall lie reinii>h copies and ttbstractH of or concerning all instruments or nieniii. rials regi«teregistry Act, 31 V. c. 20, adoi)ting in section 20 the ISth section of the Act of iHGo, adding the caution, ' but no (") « A. R. 31J» (IS83V For liabilitv of registrar for rofusivl to iii'rrnit ins|)(>(!tinn of records, or for furnishing incorrect copies, ,■«■(■ Thn)'>ii mi i*ul)lio Orticers, s. 744. (/') In Webstt r and Rtgistrar of Brant, 18 U. C. R. 87. 550 A' AVI A PROl'KliTV 6TATi'TK.i. [m vio. ■ i ' V I 4 '\ -iV-; Registrar shall allow any such book or instrument to be taken out of his possession or custody.' " " Mdke searches and ftirnish copies and abstracts " : There does not seem to be an imperative duty cost on the Registrar to go behind the abstract indexes in prepariii<>- abstracts of titles : " He has to or is entitled to examiiiL' every instrument ; . . . he is not bound to do so, it is true ; he can rely upon the correctness of his abstract index if he iyO pleases, as decided in MacNamara v. McLai/, 8 A. R. 3l9"(t). What amounts to a mere copy of an abstract index ] — In the above case, Ma<'Naniara v. McLay, the distinction between the Registrar relying on his abstract index and his furnishing a mere copy of his abstract index is well brought out : — " The fact relied on is that it was simply a copy of the abstract index. If the plaintiff had asked for a copy of the index, the defendant would certainly have been confined to the proper charge for that. I do not say to the price per folio for copying merely, which is all the plaintiff' would concede to him, for I think he woidd have had a right to 25 cents more for searching for the index. But the plain- tiff neither asked for a copy, nor did he, if he knew it to be a copy only, by any acceptance of it jis a copy only. consent to free the defendant ["lom the responsihility attaching to the demand in tho shape it was made as for an abstract of the title. If it had happt^ied that some deed had been omitted from the index the defendant would have been liable to the fat« of the defen(hint. in Harrison v. lirega, 20 U. C R. 324. I do not perceive any reason why a Registrar who is asked for an abstract of title by, say an intending purchaser, and who has the day before prepared from actual searches a similar abstract for ((•) /'.'/• R«)bt;rt8on, J., in Morse v. Lamb, -Jo O. R. 174 (1803). '^m Cap. 21.] CHARACTER OF SEARCHES REQUIRED. 551 another iiKjuirer into the same title, should not send, in compliance with the second requisition, a copy of his first abstract, and charfje the full price for each. In practice that course would always be taken, and no one would be injured by it. The accident of the original being in the abstract book which the Registrar had made himself from actual searches, and which saved him the useless toil of jroiiig over the same ground, instead of being in his copying book or in his draft, cannot make any substantial difi'er- ence " (d). Character of aearchei^ properly required of re 8ubp(piia for the prtxluction of an oi'iiijinal record, or of an orijjinal memorial from any registry officr^, shall he issiictl, unless the order of the Court or a Jud<;e is produced to the officer issuinjnr the same, and filed with hiin, and uiilcss the writ is made ccmformable to the description of the document in such order." /.«? prrsoiwl utteiuhince of ref/'ifttrar neceMnnrif : — [f tlit? personal attendance of the re^strar l)e necessary, he shoiiM be infcnnied so, or the Court will not grant an attachniciit against him, his clerk having attended with the reiiuirt'd book (n). It is not sufficient to serve one of the clerks or deputies of a registrar as it would be a breach of duty for them to bring away documents without the permission of the iieail of the office (o). Fees paifuhle to rec/istr .M. kC 4:<0(1,S41). (p) In re Nelson, 2 Chy. Ch. R. 252. But sec 57 V. c. 2.5. ^■a. (•ii|i. 21.] JSLULKCT TO SUI'J'LY JWOKS FOR liEdlSTRAH. -^55 iKMik for anil cif each to' <>Hhi|i, reputed t()\viiHhi|t, city, tuwn, town plot laid out hy the Citiwii, and inciirat«'4l village, the liiuitH wherwjf are defined by law, within the county, for which lit- lioldH (ittioe ; and he nhall alno k(«|) and cause to bo UHed for tliut pur|MHe a K*'""'*""! rcffiNtry Uiok for the whole county, in (Jeiieral wliii'h «hall U< recorded all willn, probaten, f^rantM of adniiniMtra- KejfiHtry. tinii und inNtrunientH in which tlieru iH a general deviMe, convey- ance or {Miwer atfecting landM without local dexcription, and in whicli Uiok an alphalH'tical index of the nanicM of all the parties iiii'iitidiied by name in mucIi instruni*>nt nIuiII alxo 1m* kept; uiiii whenever any UegiHtrar rwiuirea a new regintry Innik, or any other book for the UHtj of his office, the fianie whall, on Iwh New iMNikn. application therefor, in writing, Im> furnished to him by the tri'iisiirer, and all Ixioks ho furnished HJiall b«' paid for by the treasurer out of the county or city funcU at* the ca»«' may \w ; nnil nil lKH)kH ho furnished, UHcd and kept, nhall be deemed to be the prii|H'rty of IFer Majesty f<'r the tise and benefit of the imlilii' ; and the 1ns|M>ctor shall have |Miwer, when, for tiie (jespjitch of business, he finds it necessary, by order in writing, to permit more than one registry ImkiU to Ih* in usit at tiie Name tiini' for till' same municipality. K. H. O. 1887, c. 114, h. 35. " TIk* pro/)('rfu of Her Mojcstij " .• — " When wc hear in iiiiinl that under tlie former Acts the reyi.strurs furnislied thiir own books, and had on more than one occasion chiimed to remove them after ceasinjr to ho reijistrars on the j^^round llmt they were then private property, (ind 72 (18.")(;), point not decided, Is'cause the treasurer had Hut Ihi'ii given an t)|)i)ortunity of supplying books as is re<(uired by the Act. IMAGE EVALUATION TEST TARGET (MT-3) 7 /. j^'*^^/. W.r 1.0 I.I 1.25 IIM 112.5 K 12.2 IIM 40 2.0 |||||m 1-4 III 1.6 V2 / i. 1 , 'i n m ' ft*,'. ^ W"' ( ' !*?'. '''''i^*mi'' 556 REAL PROPERTV STATUTES. [56 Vic. Magistrate to certify books. Provision when any place is sej)- ii rated from a county. Certain books. . ! to be ••» f errei , Delivery art fur t (if audtlier ilso kept, iir I any county this Act, the ilities are so nty set apart, 1, the registry 3 which have r such county, township, or Is and original (,f, or relaiing M other inslni- ges within the ilso deliver an ^in each of the registry books also a proper copies of all affecting such „ or uiove hicah- |ting one locality .•ered over, sncli •der and relation re being inserted 'niovial or instru- me at winch the Id as indorsed on ;y, at the time of ,11 be accompanied |l also deliver as , copy of all wih^ ral registry book [lereto have hi-eu B locality so benig If the alphabetical 1^,; he shall also ,e'origi»»al entries Cap. 21.] REGISTRAR RESIGNING TO DELIVER UP BOOKS. 557 in the registry books in his office and in oi^je r. certificate to that effect in each book before delivering the same. Instru- ments received by the registrar of one county or registry division from the registrar of another after the year 188,"), shall be co)jied by the registrar by whom they were or are received. (\^) The Registrar receiving such books, and his successors shall keep the same among the registry books of his office, and deal with them in all respects in like manner, as those originally siipi>lied to and kept therein. R. S. O. lo87, c. 114, s. 28 ; 52 V. c. 19, s. 4. 33. Any Registrar who refuses to deliver the bonks, plans, Penalty duplicates, indexes or memorials, aforesaid, within six months on Registrar refusing to deliver books, etc. after demand in writing therefor, made ui)on liim by the Regis- trar entitled to receive the same, sliajl upon conviction thereof, before any Court of Oyer and Terminer and (Ji-neral Gaol Delivery, forfeit his office, and be liable to a fine, in the discre- tion of the Court, not exceeding •S40(). R. S. O. 1887, c. 114, s. 2!t. Books that f/o with separate Registry Office : — " In our opinion the law has clearly required that the reoistry books Mhich have been ke])t for any city, township, etc. shall be delivered over to the reoistrar for such city, etc. when it shall have become detached, and has either been attached to another county or has had a registry office appointed within itself "(x). Delivery of copies, where orki'mal hooks not trans- ferred: — Cf. Diirand v. City of Kiiujstonit). 34, In case a Registrar is removed from or resigns his office, he shall forthwith deliver up all books, plans, instruments, memorials and indexes in his possession as Registrar to the person who is appointed Registrar in his stead, or to any otlier lierson who may be specially appointed in writing, by Her Majesty's Attorney-General of Ontario to receive the same, and if the Registrar refuses to do so, the Attorney-General may direct the sheriff of the county to seize and take immediate possession of the same wheresoever found, and the Registrar so offending shall be liable to a fint , in the discretion of the Court, not exceeding $2,000, and to ar.y term of imprisonment, if the Court thinks fit to im])08e it, in addition to the fine, not exceeding one year. R. S. O. 1887, c. 114, a. 30. (.<) Registrar of London v. Registrar of Middlesex, 17 U. C. R. 382 (1859> mandamus. (0 14 U. C. C. P. 439 (1864), a casus omissiis at that time. Registrar removed or, resigning to deliver up books to new Registrar, etc. Proceed- ings in case of refusal. 558 REAL PROPERTY STATU TEH. [■■■><5 Vic. » Ill* m ^! Proceedlnrjs in case of refusal : — For the irregular removal of books by one retristrar from the office of another and the complications that arose, see Re Mc- Lay (li). For other i-emedies in case of refusal, see under sec- tion 25. When any book be- comes unfit for further use copy to be made. 35. Whero in any Registry Office, any book from age or use, is becoming obliterated ot unfit for future use, the Inspector shall, by directions in writing under hi.j hand, onliT such book to be re-copied in a book of the same description as that required under section [25] of this Act, so far as can be deciphered by examination thereof, and of tiio original memorials relating thereto, which book having the order of the Inspector for ti. ; < opying thereof, under the hand of the Inspector, insertea at the beginning of tiie book, and having the affidavit or declaration of the Rtgistrar or his deputy, at the end of the book, to the effect that the book so copied is a true copy of the original book of wliich it pur- ports to be a copy, shall be to all intents and purposes, acc(!pted and received as the original book, and as prima facie evidence that the copy is a true copy of the original book ; every original book shall, nevertheless be carefully preserved, notwithstanding a copy thereof hag been made, and every Registrar or his deputy shall be obliged to make his affidavit or declaration in this section mentioned ; and the Inspector shall have power to order any book which is out of repair and unfit for use to be repaired in such manner as he thinks necessary ; and he shall also have power to order plans ancf mai)s deposited in any Registry Office, to be copied, mounted or bound, to be preserved in such manner as he thinks necessary. And (sub- ject to any direction of the Lieutenant-Governor in Council in this behalf) he shall in like manner have power to order as many counterparts oi copies of any abstract index book to l)e made as he sliall deem necessary for the public convenience ; also to order new plans and s\irveys to be made of any locality or territory in any registry division which in his judgment have become necessary and to order new abstract indexes to be made where the indexes in use have become complicated or otherwise inconvenient. R. S. O. 1887, c. 114, s. 31 ; 52 V. 0. 19, 8. 5. "Section 25" in the fifth line of section 35 supra has been corrected into "section 29" by 57 V. c. 35, s. 4, infra. (m) 24 U. C. R. 54 (1864). Original to be pre- served. Repair of books, maps, etc. S':"' m ■I 6 Vic. igular >ce oi g Mc- iv sec- m age or \w, the ,nd, order iriijtion as vr as can e original the order the liand book, and trar or liis ,t the book iiich it l)ur- es, accep'''''^ cie evidence 3()ok; every jireserved, and every liis affidavit ,si)ector shall ,air and unfit a necessary; ips deposited bimnd, to be And (sub- in Council in to order as ■x Vxiok to l)e convenience ; any locality iis, judgment [ct indexes to .omiilicated or '9. 31; 52 V. €ap. 21.] HIIAIIVII FOR AX AliSTIlACT IXI>i:X. 559 £ sitpnt bas 4, illf^'^'- 36. The Registrar shall, in a projier book kept for the par- Abstract pose, and called the " Abstract lude.x," keep entered under a '"w'X"' separate and distinct head each separate lot or part of a lot of land as originally patented by the. Crown, or a.s defined on any plan of the subdivision of such land into smaller sections or lots after such plan has been filed in the Registry Office ; and every instrument registered on and after the first day of January, 1S6G, mentioning such parcel or lot of land or otlier subdivision, and the names of every person to each instrument, and the nature of it (such as a "Will," "Grant," "Lease," "Tower of Attorney,") the numliers of registration of all such instruments, for each municipality in which the land mentioned therein is situate, and the day, month and year of their registration, and tlie consideration or mortgage money mentionetl therein, and a sntticient description of the land therein mentioned as to readily identify its location, shall, by tiie Registrar, in addition to all <'iitries by law required, be entered in regular order, and rotation , under the projjer heading of each such sejiarate v>arcel or lot of land mentioned in such instrument, and the book or lxx)ks, to be siikejjt by eiich Registrar, for the purpose of making the said entries, shall be in the form or nearly so of Schedule E. to this Act. R. S. O. 1887, c. 114, s. 32 ; 52 V. c. lit, s. 5, s-s. 2. Abstract index, right of jiuhlic to inspect : — The right of the public to inspect, or of the registrar to withhold from inspection the abstract indexes,?, has more than once been judicially discup .ed and is not even now very clearly defined. The better, or at least as for as the public is con- cerned the more convenient opinion, appears to be that of Patterson, J.A., who says : — " There does not appear to me to be any tenable ground for hesitating to recognize the abstract index book as one of those books that may be inspected "(i*)- " Consideration or mortgage money mentioned there- in ": — Spragge, C. J.,0., notes the omission of this requisite from the abstracts produced in MacNaniara v. McLay {w). Search for an abstract index : — The suggestion made by Patterson, J.A., in MacNamara v. McLay, supra, that (t) MacNamara v. McLay, 8 A. R. 319 (1883). •*« dissenting judgment of liurton, .T.A„ in this case ; also Ross v. McLay, 25 U. C. C. P. 1!K) ; Web- ster & Registrar of Brant, 18 U. C. R. 87. (if) 8 A. II. 345 (1883). ill i i } i- '1 w^ ''. ''^ *,1 |5|#Si^ K ? J > ? \ * 'I i 1 y< 5 * <> , %: . ,j. J -.1 M.1 il ^'^1 ■ ii 560 PEAL PnOPERTY STATUTEff. [r)0 Vie. as the registrar has to search for a document or abstract index, therefore, he is entitled to cliarn^e for that search, this sugj^estion has not met with favour from the bench ; Spragge, C.J., saying in this connection : — " He has of course to find it," {i.e. the document or abstract index) "but I see no reason or authority for his making a charge for finding it. The charge is Ingenious, but I think has nothinfr else to recommend it "(x). For the system of registering before the use of abstract indexes, .see Smith v. llidoid (y), where it was decided that what the statute requii'ed was "a distinct registration of the memorial in the proper book oi each township in which the lands contained in the deed ai"e situated." For liability of registivir, for mistakes in absti'act inde.K see notes under sections 19 and 25, sx: a. Alphabeti- cal in lex i)f nauie.s for each locality. 37. Every Registrar shall also, for each township, city, town, and incorporated village, keep an Alphabetical Index of names, exhibiting in columns the number of each instrument, the names of the different grantors, and the names of the grantees, according to the form of Schedule ¥. to this Act, R. S. O. 1887, c. 114, s. 33. Omission to insert deed in alp}icd)etical index : — In Laivrie v. Rathhun {z), an argument was set up that as the registrar had omitted to insert in the alphabetical index the particulars of a certain deed, therefore the registration was void and the deed had lost its priority. The argument did not prevail. Instruments which may be regis- tered. INSTItUMKNTS THAT MAY BE REGISTKKED. 38. Subject to the provisions of the next section, all instru- ments mentioned in section 2 of this Act may be registered. R. S. 0. 1887, c. 114, 8. 34. tSee notes to section 2, supra, (x) lb. (y) 5 U. C. R. '317 (1849). Cf. section 29, .lupra. (z) 38 U. C. R. 255 (187G). Cap. 21.] REGISTRATION OF LEASES. 561 ion, iiU instrn- 39. This Act shall not extend to any lease for a term not Registra- exceeding seven years, where the actual possession goes along *'"" "' with the lease ; but it shall extend to every lease for a longer term than seven years. R. S. O. 1887, c. 114, s. 3.'>. Effect on leases over seven years : — An unreiristd'ed lease is not void as between lessor and lessee («). Covenant for renewal in lease ; — A lease for four years, with a covenant for renewal for four years more, was held as against a subsequent mortgagee of the lessor, not to require i*egistration, actual possession having gone along with the lease (6). Possession must go ivith the lease in question : — " The unregistered lease and the possession are connected together, and the two united prevail against the registered title. But it does not follow that a tenant having posses- sion under a current lease, which is his sole title, can set up the possession as sustaining a lease for a term to com- mence infitturo and to bring it within the exception "(c). Mortgage ofleafsti : — See Wright v. Stansfield (d). Assignment of I ^ai^e ; — For how far an assignment of lease needs to be registered and effects of unnecessary registration; see Doe Kingston Building Society v. Rains- ford (e). Quaere : — Has registration of the assignment of a lease the same effect as registering the lease ? (/). Assignment of mortgage of leaseholds: — See Williams. V. Sorrell (g). (a) See Hodson v. Sharpe, 10 East, 350 (1808). (b) Latch V. Bright, 16 Gr. (553 (18G9), Doe Kingston Building Society r.. Rainsford, 10 U. C. R. 23C (1853), discussed. (<■) Davidson v. McKay, 20 U. C. R. 310 (1807). See Drew v. Lord Norbury, 3 J. & Lat. 267 ; Sutherland /. Walker, 1 Kerr (N.B.) 141. (d) 27 Beav. 8 (1858). , (e) 10 U. C. R. 236 (1853) ; see also Bvthewood & Jarnuin : Conv, 4th ed. Vol. 6, p. 15. (/) See Honeycombe v. Waldron, 2 Str. 1064, where ic was held not to nave such effect. (f/) 4 Ves. 389 (1799). H.R.P.8.— 36 T'J'J ■ m 1 !'P; ' ft 562 HEAL PROPERTY STATUTES. [50 Vic. Lease by mortgagee : — See Ball v. Riversdale (h). Settlement of leaseholds : — See Hill v. Mill {i). Effect of recital of lease in deed: — See Doivncs v. Gordon (j). lit, *p I « '1 Proof for registra- tion. 1^ PROOK OF REGISTKATION. 40. (1) In the case of an instrument other than a will, grant from the Crown, Order in Council, by-law or other instrument under the seal of any corporation, or certificate of judicial pro- ceedings, a subscribing witness to the instrument shall in an affidavit setting forth his name, place of residence, and addition, , occupation or calling, in full, swear to the following facts : Place of residence : — The grantors in a memorial were described as "of the City of London," and one witness described as " of London " : held sufficient {k). (a) To the execution of the original and duplicate if any there be ; To the execution : — Where the affidavit of the witness stated that " he had seen the due execution of the deed " : held sufficient (l). Execution hy whom: — Persons may be named as parties to an instrument without their necessarily executing the instrument, as in the ordinary case of a grantee. It is the practice for registrars to require affidavits of execution as to all the parties who actually execute, but not as to those who do not execute (m). (ft) To the place of execution ; For case where place of execution omitted from affi- davit, see Magrath v. Todd {n). (h) Beat. 550. (i) 12 Ir. Eq, R. 107 ; 3 H. L. C. 828. (j) 5 Allen (N.B.) 174. U) Reid V. Whitehead, 10 Gr. 446 (1864). {I) Reid V. Whitehead, 10 Gr. 446 (1864). (flt) See Reg. v. Middlesex, 1 El. & El. 322 ; 5 Jur. N. S. 98. (n) 26 U. C. R. 87 (1866). Cap. 21.] A F FID A VIT OF EXECUTIOX. 5G3 (c) Thiit he knew the parties to the instrument, if such be the fact ; or that he knew such one or more of them, according to tlie fact ; " Knew the purties" : — The Land Titles Act is more exacting. than the Registry Act as to the degree of know- ledge, requiring that the witness should be well acquainted with the parties (o). The period of acquaintance after which a witness feels qualified to identify a party by taking the affidavit under the Registry Act, is sometimes a.i exceedingly brief one. [d) That he is subscribing witness thereto. For case of witness subscribing his name after registra- tion, see Miiir v. Du.nnett (p). 1 (2) The affidavit may be in the form of Schedule G to this Form of Act, or to the like effect. R. S. O. 1887, c. 114. s. 36. affidavit. 41. The affidavit shall be made on the instrument or .securely Affidavit attached thereto, and the instrument and affidavit shall be **^ ■'® regis- copied at full length in the Registry Book. R. S. O. 1887, c. '^^'■*^' 114, s. 37. 42. Where an instrument is executed by one or more grantors, but not by all of them, in presence of the same witness or witnesses, and by one or more of the other parties thereto in presence of another witness or other witnesses, then and in such case the witness or one of the witnesses, whether the same be so executed in the same or in different places, shall make an affi- davit in accordance with section 40 of this Act as to each separate and distinct execution of the instrument before the same is registered. R. S. O. 1887, o. 114, s. 38. 43. An instrumen t withm the meaning of section 2 of this Act, not purporting to convey the land therein mentioned, but which in its nature is, or purports to be given as a security for the payment of a debt or liability incurred by the person giving the same in respect of a purchase or delivery of any goods or in resj)ect of an advance or loan of any money, shall not be regis- tered unless the affidavit of execution states that the instrument was read over and explained to the owner or person executing the same, and that he appeared perfectly to understand the same, and was informed that it might be registered as an incum- brance on his land, such affidavit to be in the form in Schedule H to this Act, or to the like effect. .51 V. c. 17, s. 2. When different witnesses see different grantors execute. Affidavit of execution in case of instruments given in re- spect of pur- chase or de- livery of goods. i rt (o) R. S. O. 1887, o. 11«, forms 42, 4.3. (p) 11 Gr. 85 (1864). 564 ■f" REAL PROPERTY STATUTES. [50 Vie. For discharge of " lien notcH " as the instruments nion- tioned in this section are sometimes called, see section 82 infra. For priority of same, see section 85 infra. Certain defects in affidavit not to invalidate registration. 44. No registration under this Act of any inHtriunent shall be deemed or adjudged void, or defective by reason of the iiuinc, j)lace of residence, addition, occupation or cnllintf of tlif m\\,. scribing witness thereto not l)eing set forth in full, or licin^ improperly or insufficiently given or described in the affidavits mentioned in and required by sections 4(J and 4.3, nor V)y ri'as(]n of any clerical error or omission of a nieri^ly fonnal or tecliniuil character in the affidavit. K. S. O. 1887, c. 114, s. 39. Origin of section 4i : — Section 44 was introduced Ijy 36 V. c. 17, 8. 2. The object was to amend the law as laid down in Rohson v. Waddell {q), where the omission of the addition of a witness was held to void the registration. Name of witness need not be set forth in full in affidavit. 45. Any instrument may be registered imder this Act, not- withstanding that the Christian name or names of the subscrib- ing witness making the affidavit is or are only set forth tliiTciii by initial letter or letters, or abbreviation or abbreviations, and not in full. U. S. O. 1887, c. 114, s. 40. Orirjin of section J^o : — Section 45 was introduced by 36 V. c. 17, s. 3, passed to amend the law as laid down in Boucher v. Smith (r), where the omission of a Christian name in a memorial was held to vitiate the reijistration. Before whom to be sworn. 46. Every affidavit made iinder the authority of this Act shall be made before some one of the following persons : One witness may swear before another . Whitehead {s). -See Reid v. In Ontario. (1) If made in Ontario, it shall be made before — The Registrar or Deputy Registrar of the county in which , . the lands lie, Or, before a Judge of the Supreme Court of Judicature, Or, before a Judge of a County Court within his county, ( Province of Ontario. (i">) If made in any Foreign Country, it shall be made before — The Mayor of any city, 1 orough or town coriK). rate of such country, and certified under the coiniiKm seal of the city, borough or town corporate. Or, Ijefore a Consul, Vice-Consul, or Consular Agent of Her Majesty, resident therein. Or, before a .Tudge of a Court of Record or a N(jtary Public, certified under his official seal, Or, before a Commissioner authorized by the laws of On- tario to take, in such country, affidavits in and fur any of the Courts of Record of the I'rovince of Ontario. R. S. O. 1887, c. 114, s. 41 ; 53 V. c. 30, s. 2. (C) When an affidavit of execution is required to be made out of the Province before any of the officers nientidiifil in s(di-sPctions 2, 3 and 4 of this section, and the dtticer has not an official seal, it shall be sufficient for him .so to certify. 'ir: •n Witnesses 47. Every subscribing witness shall be compellable, when compellabk' necessary, by order of a Judge f>f the High Court, or of a davit County Court, to make affidavit or proof of the execution of any instrument for the purpose of registration under this Act and to do all other acts necessary for the same purpose, ui>iin being paid or duly tendered his reasonable expenses therefor. R. S. O. 1887, c. 114, s. 42. Witnei^s compellable to m<(ke affidavit: — Held in Regina V. 0'Meara(v) that a mandamus would lie to compel a witness to prove the execution of a deed and memorial for ree;istry. iv) 15 U. C. R. 201 (1857). UV'' Cap. 21.] DECLARATION Oil AFFIRMATION. 567 48. Tho proof may be nithor by affidavit or by attirmatioii Affirmation (ir declaration, when by the law of the country whorn the proof ".'' declura- is made an affirmation or declaration may Ix) Hub»*titMted for an ^^^:^^^ oaneM. affidavit; and the Ue^j^iHtrar Hfiall receive the imstrunicntH ho proved without any other or further jjroof of their due execu- tion. R. «. O. 1887, 0. 114, 8. 43. Proof hy decUiralion or (iffivmation : — See R. S. 0. 1887, c. 61, ss. 12-15 (Provisions as to Quakers, MenoniHts, Tunk- eiH, etc.)— Cf. re Lyom^ {w). 49 None of the persons authori/.ed to take affidavits by this Act shall take an affidavit of the execution of an instrument, in case he is a party to the instrument ; nor shall suuh affidavit fur the proof of an instrument executed after the first dny of January, 1800, bti taken from a witness, unless the witness Isiis Nul)scribed his name in his own handwriting as such witnei>.-<. K. S. O. 1887, c. 114, H. 44. 60. Where the witnesses to an instrument are d- ■ i or are out of this Province, or haveliecome insane, idiotic, imbecile, ci of uii (.li.i'l mind or understanding, and whether so found by inquisition or not, or where an instrument, not by law reijuiriuf^ an attesting or subscribing witness thereto, has been executed without an attesting or subscribing witness thereto, or in case \i is proved to the satisfacti(m of the Judge in this section men- tioned that the place of abode or residence of such first above mentioned witnesses is \inknown, any person who is or claims to be interested in the registration of tlm instrument, may make proof before the Judge of a County Court in Ontario, of the exe- cution of the instrument, and upon a certificate (according to the f(inn of Schedule I to th is Act) endorsed on the instrument and signed by the Judge that the Judge is satisfied by the proof adduced of the due executiim of the instrument, the Registrar shall register the instrument and certificate. R. S. O. 1887, 0. 114, 8. 45. Bl. The seal of any Court of Record affixed to an instrument iu writing, of itself, and the seal <*' any corporation affixed to iuiy such instrument with the signanire of the secretary or pre- siding officer thereof, shall be sufficient evidence of the due i'> ecution of the instrument by the Judge, Registrar, Clerk or officer of the Court signing the same, or by the corporation res])ectively, for all purposes respecting the registraticm thereof, and no further evidence or verification of the execution shall bo required for the purpose of registration. R. S. O. 1887, c. 114, s. 46. Parties not to take affi- davits. Witness to sign. WitiKss in- s.uie, absent, etc. Seal of Court or seal of Corporation with signa- ture of offi- cer to suffice for regi^itra- tion. (w) 6 0. ,S. 627. Hi' 568 HEAL PROPERTY STATUTES. [.Jtj Vic. Certificates for registry. Who may sign. Action, etc., not notice unless cer- tificate reg- istered. Form of cer- tificate. Not neces- sary in fore- closure cases. 52. ("ortificates of proceedings in the High Court for ro'js- tration may be signed by one of the Registrars of the Court, or by the Clerk of Rectirds and Writs, or by a Deputy Clerk of tlie Crown or Deputy Registrar, or by any other official auth(jii/t(l by the Court to sign the same ; and such certificates may he under the seal of the Court, or under the seal of office (if any) of the otficc" signing the same. R. S. O. 1887, c. 114, s. 47. 63. The instituting of an action or the taking of a )iroc(f(l- ing, in which action or proceeding any title or interest in land is brought in question, shall not be deemed notice of the action or proceeding to any person not being a party thereto, until a certificate signed by one of the offici-rs in the preceding section mentioned, has been registered in the Registry Office of the Registry Division in which the land is situate, which certificate may be in the following fonn :— " I certify that in an action or proceeding in the High Cuiirt, between A. B., oi , lace and other i)articulars of regis- tration as in other cases und<'r this Act, and he shall also declare that the copy, which he so delivers, is a true copy of tlie power or substitution, and of all the other documents connected with or relating to the same of which they respectively purport to he coi)ie-i, and that the originals have been duly dejiosited in Ills office according to the statute in that behalf. R. S. O. 1.SH7, c. 114, H. 50. 56. Phery such certified copy where the original jxjwer Kegistra- or substitution is deposited as aforesaid, may be registered in tionof certi- uiiy other Registry Office by deposit thereof, without produc- ^^ tiopy. tioii f)f the original power ur substitution, and without proof of .luy kind other than the producticm of the copy so certitiid as aforesaid. R. S. O. 18S7, c. 114, s. ol. 57. Every such certified cujjy of a ])ower of attorney or sub- Copy stltution, shall be received in all cases in i)lact^ of the original prima Jurie r ■ ■ , r ^1 • • 1 1 ..-i ,.• evutence. Hf./iriiuii fdcw evidence of the original j)ower or substitution .ind of due execution, provided that notice h.as been given in the luaniier set forth in section 4.") of '/'Ac Kriilrwi' Act. It. S. O. Rev. Htat. 1SS7, c. 114,.' r>2. c. (il, s. 15. ■1 (;) Abraham v. Abraham, 19 O. R. L'lil (1S!((»), MacMalion, .T.; affirmed IS A. R. 4:W. (") 2 L. J. N. S. (iO. V 570 Registra- tion of powers of attorney deiKwited in land titles offices. Reffistra- tion of in- ritrument in several regis- try offices. Registra- tion of nota- rial copies of instruments executed in Quebec. HEAL PROPERTY ilTATUTEH. [rxi Vic 88. Where a ixnver of attorney or any substitution tlu'rcuf is deposited in an office of land titles, a copy thereof certifiecl by the master, or a local master, may ))e registered in any registry office in the same manner as a copy of a power nf attorney certified by a registrar may be registered luulor section 56 of this Act. 53 V. c. 30, s. 1). 69. Wiiere it is desired to register an instrument other tliaii a will, in more than one registry office, the same may be regis- tered in like manner as is provided as to powers (jf atlorncv by sections .5;) and 50 of this Act, and a certified cojjy of suili instrument shall be received as evidence to the same extent us provided for in section 57 of this Act, respecting jKnvers <,f attorney. R S. O. 1887, c. 114, s. .').*J. 63. Every notarial ot)py of any nistrunient executed in the Province of Quebec, the original of which is filed in any notaiiid office according to the law of Quebec, and wiiich cannot tliere- fore 1)6 produced in Ontario, and every protlionotiirial cnpy uf any instrument executed in Quebec shall l)e received in hen nf and as pririi% facie evidence of the original instrument, ami may be registered and treated under this Act for all pnrpiiscs as if it were in fact the original instrument, and such notarial or protlionotarial copy shall be registered without any otlii'r or further j)roof of tlio execution of the same, or of the (.rij,'-iniil tliereof, with the seal of the Xotary or Prothonotary attached. R. S. 0.1887, C.114, S.54. It* I In.^cru- ruents to be registered in full. Jr.WNKK OK KKGISTERING, Oenerally. 61. All instruments that may be registered under this Act, sliall be registered at full lengtli, including every certificate and affidavit, excepting certificates by the Registrar, accom- panying the same, \ipon and by the delivery to the Registrar of the original instrument, when but one was executed, or when such instrument is in two or more original parts, upon and by delivery of one of such parts. R. S. O. 1887, c. 114, s. 55. Rpijlstration In full : — Rejristration by memorial was replaced by registration in full on the 1st day of Janujiry, 18GG {b). For exceptions in cases of mortgages, see 57 V. c. 35 infra. Registration htj memorial :—HQe Hamilton v. Lyons{c). (h) 29 V. c. 24 (Can.), s. 37. (e) 5 O. S. 573. " ; K Cap. 21.] CERTIFICATE OF REHIHTRATION. 571 Production of Registrars book as evidence : — See Doe (1. Prince v. Girty (d). 62. Where any instrument, sipned or executed by any person Special by attorney, shall hereafter be registered, it sliall be the diity entry t() lie of the Registrar on registration thereof to enter a note of the i.wtrumcnt fact of such .signature or execution by attorney, giving the executed by name of the attorney or attorneys, as the case may be, on the attorne*' abstract indices, and on all abstracts of title thereafter furnished by him relating to the lands affected thereby. R. S. O. 1887, c. 114, 8. 5G. 63. In case an instrument in two or more original parts is Instru- refristered, the Registrar shall endorse upon each of sucii origi- J"*'"'''' i» nal parts a certificate of the registration, in the form of .j^rts Schedule J to this Act, and any original, so certified, shall be received !is prima facir evidence of the registration and of the due e^;ecutiou of the same. R. S. O. 18.S7, c. 114, a. 57 ; 52 V. c. l!», s. .5, s-s. ;$. .See R. S. O. c. (il, s. 44. 'The R^ffidrar shaU endorse : — The Court will presume that the per.sou signing as Registrar was the Registrar at the time of registration of the instrument bearing the certificate signed by him (e). Certificdte of reijistratioa : — The Registrar is required to examine the instruments and certify without qualilica- tion the facts which he is required to state. It is not sufficient for him to make such an indorsement as follows : " Xo. 4i:}22, jnirportiiiif to be a duplicate hereof, was rt'eorded"(/). 'Prima facie evidence" ;— Cf. Goidd, v. McGrenoi' Uj). ''Of the. due execution": — This would include de- livery (A). ■- ,M ((/) !) IT. C. R. 14. (') liriggs V. McBride, 1 Tug. & Bur. (16;?. (./■) Re Bradshaw and Registrar of Simcoe, 2*) U. C. R. 4ol (lSi)7). .SVc luites under section !I3 in fro. ('/) 13 X. .S. R., (I R. &G.) 3.$'.), followed in McCorniack v, Dennison, l.'iN. S. R., (3R. &G.)71. (/i) !^ee McDonnell v. McMaster, 15 N. S. R. (3 R. & C.) 372. n u 1 1 IpB 1 1 If ri (til II' f fi.''i ' I l'y " in the margin opposite each copy in the register, such menior.andum to be signed by the initials of the Registrar or his deimty or clerk making the examination. When a register is comiiletfd, the Registrar or his deputy or clerk, as the case may be, shall at the end thereof showby statutory declarations that the copies contained in such register and certified by them resi)ectively, are true copies of the original instruments of which tliey purport to be copies. 53 V. c. 'M, s. 3. " Hour and minute " ; — The provision requiring^ the minute to be set down in the certificate of reJ0 the same fees in respect of the registry of such will a" ' •:• '■■■^: Ad h.'vve been entitled to, had the will not contained ar;' ■;■• • or gift of or reference to such lands by local description. ^ c. iiO, s. 4. (3) Where a will is registered by the yi'vO on of the original will, the affidavit of the subscribing witness or some other person must state that the testator is dead, either to ihe knowledge of the deponent, or as he has been informed and believes. 52 V. c. 19, s. 5, s-s. 5. Cap. 21.] REGISTRATION OF MEMORIALS. 575 Proof of will or death : — Section 70 provides for evidence of the death of the testator but does not seem to require proof of the testamentary capacity of the testator at the time of execution, or that the will produced is the last will and testament {n). For effect of non-registration, see section 86, infra. 71. Letters of administration which under The Duvnlulion of Estates Act affect lands, may be registered in the same manner as probates of wills are now registered, and the registrar shall bo entitled to charge for registering letters of administration, with- out a will annexed, including all entries in respect thereof, a fee of one dollar. 51 V. c. 17, s. 5. Registra- tion of letters of administra- tion. Rev. Stat. c. 108. Other Instruments. 72. All instruments, other than grants from the Crown and wills, shall be registered by the deposit of the original instru- ment, or by the deposit of a duplicate or other original part thereof with all tlie necessary affidavits. R. S. O. 1887, c. 114, s. Co. [As to Registration of Orders and Jiid'jments for Alimony, &cR. S.O. c.'44, s. 30.] Instruments executed before the 1st January, 1866. 73. The registration of all instrumenta executed before the first of January, 18GG, may be made throiigh memorials or by certificate or otherwise, as provided by the law in force prior to the Registry Act passed in the year 1865. R. S. O. 1887, c. 114, s. 66. Other in- struments. Registra- tion of instruments executed be- fore 1st Jan. 1806. Registration of memorials : — See Harty v. Appleby (o). il!^ 74. The proof that would before the first day of January, 1806, have been sufficient for the registraticm of any instrument executetl prior to the said date, .shall be deemed sufficient for the registration hereafter of any such instrument ; but in any such case the instrument shall be registered at full length, and the memorial and affidavit shall be deposited and filed in lieu of an original or duplicate. R. S. 0. 1887, c. 114, s. 67. Proof of registration of instru- ments exe- cuted before 1st Jan., 1866, etc. (n) See Doe d. Savoy v. Savoy, 30 N. B. R. 227 (1890) ; see ib. for admissi- bility in evidence of certified copy of will registered but not proved. See further, R. S. O. c. 61, ss. 38-41 ; Davis v. VanNorman, 30 U. C. R. 437. (o) 19 Gr. 205 (1872), effect of clerical error. 576 REAL PROPERTY STATUTES. I' t 4 [.% Vi ic. Registra- tion of instruments in full when memorials previously registered. Satisfac- tion of mort- gage liow registered. Entry in margin of register. Effect of such regis- tration. 75. (1) Any instnnnent which has been registered by memorial prior to the Ist day of January, ISfiO, and has endorsed thereon a certificate of the registration thereof, may he re-regis. tered at full length in the same or any other Registry Divisitm by the production of the original instrument and the deposit of a copy thereof, with an affidavit verifying the copy. (2) In re-registering such instrument the Registrar shall copy the affidavit of verification and the certificate of former registration, and shall write in the margin of the registry book the words "Original not deposited," and where the former registration wvs made in the same office, tiie Registrar shall write upon the entry of the memorial in the registry book a memorandum as follows :— " Re-re?istered in full at Xo. ," giving a reference to the number and volume where the full registration is entered, and he shall also note the re-registration in red ink wherever in an abstract index the memorial is entered. (3) The Registrar shall also endorse upon the original in. strument a certificate of the re-registration, in a form similar to the certificate of registration given in .Schedule .J of tjiis Act. R. S. O. 1S87, c. 114, s. m. Discharge of Murbiaijcs. 76. (1) Where a registered mortgage has been satisfied, the Registrar, on receiving a certificate executed by the mortgagee, or if the mortgage has been assigned and the assignment regis- tered, then executed by the assignee, or by such other i)erson as may be entitled by law to receive the money and to discharge the mortgage, in the form of Schedule L to this Act, or to the like effect, executed in the presence of one witness, and duly proven by the oath of the subscribing witness there*'o, in the same manner as herein is provided for the proof of chIj't instru- ments affecting lands, shall register the same, ar.'' every aftichivit attached thereto or endorsed thereon, at full length in its proiwr order, in the registry book, and shall number it in like manner as other instruments are required to be registered and numliered, and shall write in the margin of the register wherein the said mortgage has been registered, words to the following effect : " iSee certificate purporting to be discharge signed hy (naming the person who has executed the same), and see Registry number of such certificate Book (stating the same according to the fact)," and to such marginal entry the Registrar or his Deputy shall aflSx his name ; and the same shall be deemed a discharge of the mortgage, and the certificate so registered shall be as valid and effectual in law as a release of the mortgage, and as a convey ince to the mortgagor, his heirs, executors, administrators, or assigns, or any person lawfully claiming by, through or under him or tViem, of the original estate of the mortgagor. R. S. O. 1887, c. 114, s. 69. Cap. 21.] STATUTORY DISCHARGE OF MORTGAdE. 577 (2) In any case wliere a mortgage shall hereafter be pair! Registra- otf by any person advancing money by way of a new loan on *''"' i' ■ ^ ' , ° 1 >.i \. ■ t Lc chaigewhen mortgage on tlie same j>roi)erty and the mortgage so i)aid oti or „i„rtiragt" the discliarge thereof is held by tiie mortgagee making tlie new paid off by loan or advance, the discharge of the mortgage so paid off shall "ew loan. be registered within six months from the date thereof, imless tlie mortgagor shall, in writing, have authorized '■he retention of the said discharge for a longer pericKl. Such registration shall not affect the right (if any) of any mortgagee or purchaser who may have paid off such mortgage to be sul)rogated to the rights of the niortg.agee whose mortgage debt lias been so paid. Nature of statidory discharr/e of mortgage : — " It is scarcely necessary to observe that the statutory discharge of mortgage is a very peculiar instrument. Having no effect upon the legal estate before registration, by tliat Act it may be made to operate upon it, and in the case of a deceased mortgagee although it is executed by his personal representatives in whom the legal estate never vested. It was early introduced into the law of the Province, as part of the machinery for transferring real estate "(p). "Entitled hy law to receive the money " : — In the above case of Dilke v. Douglas, Moss, C.J., after reviewing the legislation on the subject of the statutory discharge goes on to say : — " We have referred to these various statutes because it appears to us that there runs through them a steady policy of enabling the person, or even one of the persons, entitled to receive the morto^age debt, to discharo-e the mortgage and restore the legal estate." No necessity to go behind discharge and, inquire as to actual 'payment : — Referring to the same doctrine as in the preceding paragraph his Lordship continues : — " In my opinion this doctrine should be rigidly main- tained in a country where the system of real property law M Mosa C..T. A., in Dilke v. Douglas, ,5 A. R. G3 (1880). legislation on this subject see ib. For historj- of H.R.P.S. — 37 57.S /!/:.i/, Pitoi'KitTr STATU rj:s. [M Vic. •:f;l luis tau<4'ht the people iit large to place «^reat reliance upon the state of the registered title. 'Jo pronounce that the purchasers in this case were bound to iufpiire whether payment in money had actually been made, would he practically to neutralize the statutory provision sanctionin"- payment to a survivor," Discharge does not operate as a reconvci/ancr v/atU rerfistcrcd : — What is tantamount to a reconveyance is the certificate and the registration thereof. Until registered, the discharge is only a receipt for so much money ami leaves tlie legal estate vested in the mortgagee and his representatives ; nor does it release the mortgagor from an}' of his covenants (q). There are a number of cases in the reports as to the duty of the registrar in recording discharges. He has been held bound to register a discharge of part of the land contained in a mortgage (r) ; but not to register a single discharge of two mortgages (.s). A discharge whicli, (though the registrar properly might refuse to register it), has nevertheless been registered, is valid as a re-convey- ance (/). The certificate of the registrar that the nKjrtgage has been discharged, endorsed on the mortgage deed was held sufficient evidence of reconveyance without proving the execution of the discharge itself (u). As to the effect of errors or omissions in the executed certificate of discharge : it has been, considered that the entire omission of the payer's name would not invalidate the discharge (v) ; nor would the alteration of an incorrect Uj) Trust & Loan Co. v. Gallagher 3 P. R. 100 (1879) ; P.c Music Hull Block, 8 O. R. 228 (188-1). (r) In re Ridout, 2 U. C. C. P. 477 (1853). (s) In re Smith & Shenston, 31 U. C. R. 305 (1871). «) Magrath v. Todd, 2G U. C. R. 87 (13G6), distinguishing Robson v. "W.adell, 24 U. C. R. 574 (1864). («) Doeil. Crookshank v. Humberstone, 6 O. S. 103 (1841). d') Carrick v. Smith, 35 U. C. R. 348 (1874). 25 U. C. C. P. 239, See Macauley v. Boyle, Cap. 21.] ItlallTS OF MOllTdMlKK I'MT) OFF. 579 < of morfgiifiee paAd off : — It seems that even before the passing of this sub-section in (w) Sayles v. Brown, 28 Gr. 10 (1880). (x) Be Mara, 16 O. R. 391 (1888). (,'/) Re Clarke and Chamberlain, 18 O. R. 270 (1880). (.-) But see 14 C. L. T. 40. (a) Thia practice is suggested in the case of Trust &Loan Co. v. Gallagher, 8 P. R. 100 (1870). ill 580 HEAL PIKU'EHTY STATUTES. [r^ Vic. ,1 i' "'^ bona fide cases of inistako a Huli.seijiu'iit inorti^unfL' or purchasor mij^ht claim to he .subro^fated to the ri^jhts ol' a mort<^aji>eo whoHo incunil trance he had ilischar^ed. AhrJl V. Morrinon {!>) i» an instructive case of this sort, the facts being as follows: — (». M. searched on the 18th day of the month intendinrancers whose claims lie paid. " I find as a fact that at the time of the sale and con- veyance to him he had no notice or knowledge of the agreement between the plaintitt' and the other defendaiitn. I find that he paid his money and discharged the prior mortgages under the mistaken belief that he was Liettinii' a good title in fee simple unencuml)ered, and to adopt the language of my brother Street in Brown v. McLean, LS O. R. 533, ' that he is not disentitled to relief by reason of the fact that by using ordinary care ' (in this case by a subsequent search in the Registry Office) ' he might have discovered the defendant's execution, because the defendant has not been in any way prejudiced by the mistake.' " To a like effect is the decision of Boyd, C, who con- cludes : " I do not feel compelled as a conclusion of law to say that this defendant had notice of what he was doing, and so cannot plead mistake. He has proved mistake and (6) 19 0. R. 6C9 (1890). Clip. 21. HHLKASE i>F J'AliT OF LAMiS MoHTdAnKD. oSl lias Itrouiflit liiin.si'lf within the »'(|uitiil)lL' (lof'^Tine which resuscitates the di.schargXMl inortna-fes for liis ny iiiari'iml WOlllt'll. Kt'V. Stat. c. 131. 77. (1) It A\\\,\\ not Uf lU'Cf'sw.ary to tin- vuliility of any cci'tiHcatt' of (li.sclmr^ff of inort^jii^'t' jfivcii l>y u iiiarritxl woinnn tliiit tliH liiishaiid of such niarricil woniaii hIiouM !»■ a party to or Mlioulilt'xcoiitc till' *Mw ; and it is lu-ri'liy dn-larcd that any ilis- uhargc of mortgage licrctoforc executed l>y a married wonum alone (and duly registered) .shall In- as effectual to discharge such mortgage and to re-convey ftll the estate of such nuirried woman in the mortgaged lands as if the same had heen execuU-d hy tlie iuishand and wife conjointly. (2) Any such ci-rtificvte given hetween tlie I'.tth day of December, l.S(i><, and tiie'JIttlulay of March, 1S7H, shall be deemed to luive been sutticielitly executed if it has been exeoute.l jointly hy sucli married woman and her husliand ; and from and after the 2'.»th day of ^[aroh, 1S73, and after the passing of this Act, execution, either jointly by the married woman and her husband, or pursuant to Tim Mmri'il 'Vnuuing lii'tif A^■^(^■ .Ic/, shall be deemed sutticient execution ; and it shall not l)e necessary to jiroducH any certificate of such married woman having been examined before any of the persons authorized by the laws in force between said dates tonchmg her consent thereto in any- wise, 11. S. O. 1887, c. 114, s. 70. " I'J.veraied joinilii " : — As to what constitutes execution liy niarried woman jointly witli her husband, see JJurns v. Mr Adam (d), Monk v. FarlliKjer (e). 78. All certificates of discharge of mortgage and the regis- All dis- tering thereof executed by niarritMl women or registered iirevi- charges ot . mortgage by oiisly to the nineteenth day of December, 18 thirty -.second year of Her nien before Majesty's reign, and chaptered nine, shall Iw as valid and bind- 1"*'' Dec, ing as if done after the Baid date. K. S. 0. 1S87, c. lU, s. 71. Jir,^;^""' 32 V. c. 0. 79. In case the mortgagee or any assignee of the mortgagee Release of desires to release or discharge part tmly of the lands contained j''**''^ ""'y "' , ^ ,1 1-1 I . r i.1 lands mort- 111 such mortgage, or to release or discharge only part of the gl^g^,,^^ money specified in the mortgage, lie may do so by deed or by (c) Citing Brown v. McLean. 18 O. R. ,')33 ; Trust & Loan Co. v. Cuth- hert, 14 Gr. 410 ; Cobb v. Dyer, I'J Me. 4'.»4. («) 24 U. C. R. 44!) (18G5). (e) 17 U. C. C. P. 41 (ISCfJ). ■o;'".Wf 582 REAL PROPERTY STATUTES. [no Vic .i;i p' ^'-''■ ' J' , hi 1 ^;j' ■ ^ Klii: ',* |3 5 iff . i . J' Portion released to be described. Discharge of niortfraf^e seized under execution. Form of certificate of discharge. Seal of Court. Proof of execution of certificate. Effect of certificate. EflFect of certificate of part pay- ment. Retro- 8])ective operation. a certificate to be made, executed, proven, and registered in the same manner as in cases where tho whole lands and niortfrage are wholly released and discharged ; and such deed or certificate shall contain as precise a description of tlie portion of lands m> released or discharged as would be necessary to be contained in an instrument of conveyance for registration under this Act and also a precise statement of the amount or particular sum ur sums so released or discharged. R. S. O. 1887, c. 114, s. 72. 80. (1) When a sheriff, lailiflF of a Division Court or other officer, under a writ or warrant of execution against ^'imvIs seizes any mortgage belonging to the person against whose effects tlie writ or warrant has issued, on or affecting land in the Province of Ontario, the payment with or witliout siut in whole or in part to the sheriff, bailiff, or other officer b • tiie mortgagor or any other person of the mortgage money then '7 secured shall discharge the mortgage to the extent of such payment. (2) After paym.ent of the mortgage or any part thereof, the sheriff, bailiff, orotherofficershr.il, at the request and expense of the per ion requiring the same, give a certificate in tlie form or to the effect of Schedule M to this Act, under the hand and seal of office of the sheriff or other officer, or under the hand of the bailiff, and the seal of the Court of wliich he is bailiff. (3) Upon the written request of the bailiff the clerk of tlie Court shall affix to the certificate the seal of the Court ; and he shall file the reques'j of the bailiff in his office. (4) The execution of the certificate shall be proved by the same oath or affirmation, and in the same manner as is provided by law for the proof for registration of other instruments affecting lands, and the certificate shall be registered in tlie same manner as other certificates of discharge of mortgages are registered. (.-)) Every certificate so registered, if the same is of payment in full of the mortgage, shall be as valid and effectual in hiw as a release of the mortgage and as a conveyance to the mort- gagor, his heirs, executors, administrators or assigns, or any person lawfully claiming by, through or under him or them, uf the original estate of the mortgagor as if executed by the exe- cution debtor. {(')) Every certificate so registered, if tho .same is of paynn iit of oidy a portion of the mortgage, shall be as valid and ett'ectual in law as a release of the mortgage as to such porti(jn, as if executed by the execution debtor. (7) The provisions of this section shall extend and apply to all cases in which the seizure or payment was before, or since (he twenty-first day of December, 1874. 1\. S. O, 1^87^ c. 114, s. 73. Cap. 21.] BVLAU'S, ETC. 583 For cases on mortgages seized in execution, see Howes V. Lee (/), Lee v. Howes (•), Fe(jge v. Metcalfe (I). 81. It shall not bo necessary that the residence or occupa- tion of the attesting witness to any certificate of discharge of mortgage be stated in tlie attestation clause thereof • nor shall any such certificate, registered before the twenty-ninth day of March, 1S73, be invalid or inoperative by reason of the omission to state in the attestation clause the residence or occupation of such attesting witness, R. S. O. 1887, c. 114, s. 74. For application of section 81, see Stoddart dart (m). 82. Instruments ot the nature mentioned in section 43 of this Act, registered before as well as after the passing hereof, nir.y be discharged, and the lands affected therel)y released therefrom by filing in the registry office a certificate of discharge in tlie form contained in Schedule N. to this Act, or to the like effect. 51 v. c. 17, s. 3. Residence, etc., of wit- ness to dis- charge of mortgage need not be given in at- testing clause. V. Stod- Discharge of instru- ment given in relation to purcliase of goods. See section 85 infra for priority of such an instrument. BY-LAWS, ETC. Registr 83. (1) Every by-law passed since the twenty-nintli day of Marcli, 1873, or hereafter to be passed by any nmnicipal council t"^"> "^ ^i'- under the authority of which any street, road, or higliway has j.'^, g^. ''Iltl"" been or is opened upon any private property, shall before the March, 1873. same becomes effectual in law, be duly registered in the registry ottice of the registry divi''')n m wliich the land is situate ; and for the purpose of registration adui)licate original of the by-law sliall be made out, certified under tlie hand of the clerli and tlie seal of the municipality, and sliall be registered without any furtlier proof. (/) 17 Gr. 450 (1870), sale by sheriff under invalid writ. (;/) 30 U. C. R. 202 (1870). (/() 20 U. C. R. 51 (1800), purchase by mortgagee. Cf. Smart v. Cottle, 10 Gr. .')0 (1803). (/) 17 IT. C. C. P. 203 (18G3), sale of eiiuity under ,/('. fa. does not re].:.se mortgagor or surety. ij) 14 Gr. 188 (1808), can there bo a sheriff's sale of part of mortgaged [m>\n'Vty. (k) 10 U. C. C. P. 243 (ISGO). (0 5 Gr. G28 (1851)), purchase by judgment creditor. (»i) 39 U. C. R. 203 (1870). h I m m 584 "4^ l-i H It' 'A" \ BEAL PROPERTY STATUTES. [■-.i; Vic. As to by- laws, etc., relating to roads made before 2!tth March,1873. (2) Every by-law passed before the said day, and every order and resolution of the Quarter and General Sessions passed Iw-fdrc the said day under the authority of whicli any street, nad, or highway, has been opened upon any private jiroperty, vuay ,it the election of any party intere.sted and at the cost and eh irges of such party or municipality, be also duly registered, upon thi; production to the Registrar of a duly certified coiiy of the hyhiw under the hand of the clerk of the municipality and the sta! u{ the municipality, or by a duly certified coi)y of the order or resolution of the Quarter or General Sessions, given umUr the hand and seal of the Clerk of the Peace, as the case may be. R. S. 0. 1887, c. 114, s. 75. (3) All by-laws, proclamations, Orders in Council and other instruments of a public, or y of a iiroclauiiUion, Order in Council or other instrument certified by the chief officer of the department from which tlio same is issued shall be sufficient proof for registration pur^joses under this section. For operation of. section 83, see BeverUhjc v. Creel- ma7i(»); cf. Dunlop v. Tuwiisli'ip of York{o). EFFECT OF REGISTERING OR OJIITTING TO REGISTER. By-laws, etc., affect- ing changes iniiiunicii)al boundaries. m Unre^is- 84. After any grant from the Crown of lands in Ontario, 1*^'?.*! ?"!!fl'!!l ^"^ let';ers patent issued therefor, every instrument atfettinj,' the lands or any part thereof comjjrised in the grant shall lie adjudged fraudulent and void against any suljseqnent inu'cliaser or mortgagee for valual)le consideration without actual notice, unless such instrument is registered, in the manner herein directed, before the registering of the instrument under whicli the subsequent purchaser or mortgagee claims. R. H, O. 1S87, c. 114, 8. 70. ments after grant from the Crown to V)e void against sub Hecpu'Ut re- gistered purchaser or mort- gagee. Law previou8 to section SJf : — Previously to section 84, whicli was enacted by 13 and 14 V. c. G3 (2?), the registry (n) 42 U. C. R. 29 (1877), section not retrospective. (o) 1(5 Gr. 21G (1809), right of registered incumbrancer in expropriatioi; mcmey. (p) Taking effect on instruments executed since 1st January, 1851, sec Campbell v. Campljell, Gr. OW (lJi58). W i^i «fl Lift ^ :>i Cap. 21.] VALUABLE CONSIDERATION MUST BE PROVED. 5S5 laws had no operation until the title became a reoistered title (q) ; it was necessary to give evidence shewing that the title was a registered one before the Act could Ije held applicable (j*). "After any (jrcnt from the Crovn" : — The registry Acts do not apply to instruments executed previously to the gjrant from the Crown (.s). But any one having a mortgage incumbrance or lien on unpatented lands may register the same (J) ; except in the case of grants under Tlie Free Grantn and Homesteads Act, which expre.ssly negatives any power in the locatee to alienate (other \,'ise than by devise), or to mortgage or pledge any land located as aforesaid, or any right or interest therein before the issue of the patent (u). Notice of alienation of unjmtcnted, lands; — Express notice of an unregistered assignment of unpatented lands has the like effect with express notice of an unregistered conveyance after patent issued (( ). Registration of a mortgage of unpatented lands is notice to subsequent purchasers, whether the patent has issued under or without a decision of the Heir and Devisee Commission (w). Valaahle consideration must he iwoved : — It seems that in order to claim the benefit of this section the subsequent (7) Campboll V. Fox, 26 U. C. R. 031 (1807) ; Cf. Van Sicklcr v. Ti'ttet, 5 L. .^. 41, 104 ; Scott v. McLeod, 14 U. C. R. 574 ; />'r >/. Mallock v. Duclier, 4 r. C. R. 14 ; Doe d. Shiblev v. Waldron, 2 I'. C. C. 1'. ISit ; Dne d. Adkiiis V. Atkinson, 4 O. S. 140 ; Doe d. HtnufSfy v. Meyers, 2 O. S. 424. (/■) Xeeson v. Eastwood, 4 U. C. R. 271 ; Blakely v. Garrett, 10 r. C. R. 2(51. (.s) Casey v. Jordan, 5 Gr. 407 (IS.jO). Case of locatee giving Ixmd and .sub.seqiiently conveying. (t) R. S. O. 1887, c. 27, s. 27 ; Holland v. Moore, 12 Gr. 21)8 (1800). Si-e also R. S. O. 1887, c. 24, s. 17. (h) R. S. O. 1887, c. 2r), s. 10. (<•) Goflf V. Lister, 13 Gr. 400 ; 14 Gr. Ah\ (1808). (it) Vanse v. Cuniniings, 13 Gr. 25 (1807). 586 EEAL PROPERTY STATUTES. [56 Vic. Mi' 'fir;* fi I. ir , 'It purchaser or mortgagee must prove the valuable consider- ation. Thus in Barhr v. McKay (x), Boyd, C, says : — " Where priority is sought under the Registiy Act for a conveyance subsequent in date, it is essential that proot" of valuable consideration should be given. For this purpose the mere production or registration of the instru- ment is not enough, and no inference to this effect can be reasonably drawn from the provisions referred to liy the plaintiff: s. 57 of the Registry Act, R. S. O. e. lU, and ss. 44 and 45 of the Evidence Act, R. S. 0. c. (!1. In some cases the legislature has relaxed this rule, and in the case of defence of purchaser for value, R. S. O. c. 10!), s. 3G, and in case of a subsequent purchaser, c. 100, s. (i. . . . The plaintiff here fails, because, relying upon tbo registry laws to give priority to the deed under Avhich ho claims, he has failed to prove the consideration, and it is not suggested that the difficulty could be remedied by opening up the matter for further trial." How far receipt in deed is proof of valucdde consider- ation : — To put the subsequent deed itself in as evidence will not suffice to prove the valuable consideration unless the deed is put in by the opposite party and not the party seeking to establish his priority under this section. Tliis distinction is observed in the above case of Barhi'r v. McKay (y): "The deed relied upon by the plaintiff as givin^,^ him priority by virtue of its prior registration is expressed to be for $450, and was put in by himself; had it been called for and put in by the defendant the plaintiff niiglifc have invoked Bandy v. Fox, 29 U. C. R. 64, as dispensing- W':'-^ :.'■!■■ ■ :\ (.1') 19 O. R. 46 (ISOO), citing ISIcKennv v. Arner, 8 U. C. C. P. 4i;. .*'' also r>o,'. d. Major v. Keviiokls, 2 U. C. R. '.MX ; //"J ''. RiHsell v. Hudifkiss, ."> V. C. R. 348; I) >e d. Priiico v. (Jirty, U U. C. R. 41; Leecli v. Leech, :;4 ir. C. R. 321; Fraser v. Sutherland, 2 Gr. 412, niortra. For recjuirenient in cases of lands purchased by religious institutions, see R. S. O. 1887, c. 237, ss. 19 & 20; and cf. Doe d. Boivman v. Cameron {n). For further treatment of subject of priori t}', see notes under sections 94, 95, infra. n ■ ft ,f. Instruments giving au- thurity to (sell and niiuiini,' connni.ssion, nut to hind land after cine year from date. 85. Every instrument within the meaning of section 2 of this Act, which in its nature is, or inirports to be, n-iiowerof attorney or authority from one person to another to sell lands, and in wliich instrument the commission, iiayment fur servicfs, or other reminieration of the attorney or agent therein named, is made a charge on the land, shall not, as against a subsequent j)urcha8er, or the creditors of the person giving the power or authority, have effect to charge tiie lands with such connnission, payment for services, or remuneration, after the lapse of the time hereinafter mentioned, namely : — (1) after the lapse of one year from the making of the instrument, where the same is made or executed after the passing of this Act ; (2) after tin- lapse of one year from the passing of this Act, where the instru- ment has been heretofore made or executed. 51 V. c. 17, s. 2. See sections 43 and 82, supra. H \ ij) Laird v. Paton, 7 0. R. 141 (1884). C. P. 09. See Kitchen v. Murray, 10 U. C. (k) 10 Gr. 440 ; 2 E. & A. 580 (18G5). il) 19 Gr. 220 (1872), actual notice of unregistered deed of unascertained portion of property. (m) L. R. 2 H. L. 391, case where registration effected afteraction brought. in) 4 U. C. R. 155. See also re Baptist Church Property of Stratford, 2 Chy. Ch. 388. W i«1 faith who has acquired priority of registratioji. li. S. O. i.ss; c. 114, s. 7'J. Operation of section .9-9 ; — See Jones v. Coivden (z). 89. The registration of any instrument, under this Act, or any f(jrmer Act, shall constitute notice of the instrument, to nil p(^rsons claiming any interest in the huids, suhsetpient to sucli registration, notwithstandii,;,'- any defect in tiie proof for regis- tration, but nevertheless it shall continue to be the duty of every Registrar not to register any instrument, except on such prurjf as is required by this Act. H. S. O. 1HS7, c. HI, s. .so. Refiistry to he notice; — Registration was not notice until 13 & 14 V. c. G8 {a), wliich enactment attectdl instruments reo-istered before as well as since its passing (b). Principle on ivhich registry is deemed notice ; — " I think tliat the statute proceeds upon this, that a party ac({uiring land ought to see whether there is anything registered against that which he is about to ac({uire : aii'l that he is to be assumed to search the registry for thiii purpose ; but this does not apply to one who is not acquiring, but parting with an interest in lands " (c). («) 4 U. C. R. 8 ; cf. Waters v. Shade, 2 C-r. 457. (i) 11 U. C. R. 211 ; cf. Smith v. Brown, 14 u. C. R. 12. («•) 4U. C.C. P. 402. (r) 22 Gr. 4G5 (187i5). Sheriffs' deeds not referring to plan of sub-division. {y) 8 U. C. C. P. 520. (2) 34 U. C. R. 345 (1874). See also Carroll v. Burgess, 40 U. C. R. 38] ; Peck V. Bucke, 2 Chy. Ch. R. 294. {(() Section 8. See Street v. Commercial Bank, 1 E. & A. 246 ; 1 Gr. 1(19. See Kay v. Wilson, 24 Gr. 212. (b) Vance v. Cummings, 13 Gr. 25. (c) Trust & Loan Co. v. Shaw, 16 Gr. 446 (1869), Cf. Bank of Montreal v. Baker, 9 Gr. 301. Cap. 21.] CONSTRUCTIVE NOTICE. 593 Reffistry is contractive notice onbj toafter parchufiers : — See liatea v. Xorcrosa (il). Is the presiimi>tion of notice aader this section (iJisolide ^ — "The Re<(i.stry Act whieli declares (.section 80) that registration shall constitute notice does not preclu« Vic. yet such knowlodf^e would not prevent Iiim recoverin;'- ou the covenant against incunihrances (A). ml 1 '. I' / 1 , 11 ' L If y f',^ Retro- 90. Ho fur a-i by tin- Iii^t pn-coflinff Hceticjii it is in-i.vicl.i] Hixictivf t,im^ ivitwith.stfinding jmy diifi-ct in tlx- proof for rcL'istiation la«t Hectiou. '''"' r''K'«tration of an uiHtnnncnt sliall constitute notice thereof, the Maiied in the registry book, no entry shall be made in the abstract index or in the ali)habetical index respecting such instrument, excei>t in tin' manner hereinafter provided ; nor, except in such manner, shall any alteration or correction be made in any entry previously made respecting any instrument, or in any cop}' of any instru- ment in any registry bwjk. (2) The registrar or his deputy sh-all as promptly as possihln after becoming aware of any omissi(m or error in copyin;,', cause the entries, alterations or corrections which are re([uisite, to be made in red ink ; and a memorandvnn stating the date of such entry, alteration or correction shall be made in red ink in the margin of the index or registry book opposite or near thereto ; and such memorandum shall l)e signed by the Registrar or his deputy. 52 V. c. 1!», s. 3. 92. An person (other than the Registrar or other officer when he is entitled by law so to do), who alters any of the books, records, plans or registered instruments in any registry office, or makes any memorandum, words or figures in writinj,' thereon, and whether in pencil or in ink, or by any otlnr means, or in any way adds to or takes from the contents of such book, record, plan or registered instrument, shall, mi summary conviction therefor, before a justice of the peace, fiK (h) Piatt V. (irand Trunk Ry. Co., 12 O. R. 134 (188G). (0 26 U. C. R. 87 (18(56), affidavit not stating pl.ice of execution ; distin- guishing Robson V. Wadtiell, 24 U. C. R. 574, where addition of witness omitted ; cf. Campbell v. Fox, 26 U. C. R. 631 (1867), defective registratiim followed by re-registration ; Jones v. Cowden, 34 Tf. c. R. 345 (1874), execu- tion by sheriflf of deed after he had gone out of office ; Lawrie v. Rathhuii, 38 U. C. R. 255 (1870), omission to enter in abstract index, how far a defect. See also under sections 44 and 45, supra. Crtp. 21.] IIEGEIPT liY nEiUSTltAU C()NSTITUTES HEdlsrilY. 595 ;()liyinft, ccv wilt'" try office, writitiS any "tlitr intents of shall, on he peace, Winn in- Htniint'iitM to Ih' (Ifcnii'd registered. forfeit and piiy a iHtnalty of not less than j85, and not more than .*<1(M» Ix^ides the contH, and in defaidt of i)ayinent thereof, he .shall he imprisoned in the county Kaol of the county in wliich the offence was committed for a perii^l of not less than three months, and to bu kept at hard labour in the discretion of the convictinff justice. 93. Every instniuient capable of re(?istration and having the proper affidavit of execution attached thereto, shall be deemed to be registered when and so soon as tlie same is delivered either jH^rsonally or by letter to and received at his ottice dur- ing office hours by the registrar or some officer or clerk in his otHce on his behalf, and a ttaider or payment made of the pro|)er f.'es therefor, and thereafter no alteration shall be made by any y)er.son whatever in such instrument, and any ix-rson alter- ing the same shall l)e deemed to be guilty of the violation pro- vided for by the |)recediiig section, and may be punished in like manner as therein provided. Receipt hy Registrar cond'dutei^ rer/lsft'u ; — This con- firin.s what was the practice. Tims, in Armour on Titles we lin L. J. I':q. tJ'J. (r) Trill. Term 1807. .St'f Ir. Rep. ISliT. (•1) L. R. 1 Cli. .'{10(1801)), 12. Cap. 21.] UNREGISTERED EQUITIES. 599 tion, and about a matter as to which it is part of his duty to inform himself, is actual notice to the client (s). Possession is not actual notice : — Possession is not such notice as since the Registry Act of 1868 (a) will postpone a registered deed to the prior unregistered title of the party in possession {h). Attempt to reconcile sections OJf and Do: — "I can suggest that we may prevent any clashing of the provisions by holding if an ' ecjuitable lien, charge or interest ' have been created by deed, or even by any writing capable of being registered, that actual notice of such deed or instru- ment would, under the (j7th section (e), prevent the effect of priority of registration. " But as to equitable liens, charges or interests, evidenced only by parol — as in the case before us — or as to such interests as a vendor's lien for unpaid purchase money, is there any reason for our denying that the legislature has emphatically excluded them from affecting a duly regis- tered title ? "00- Unregistered equities: — A parol trust cannot prevail over a mortgage registered without notice of the same {/). Where a son had mortgaged as surety for his father, it was held that as against a bona jide purchaser for value without notice, from the father, neither the son nor his (z) Rolland v. Hart, L. R. (i Cli. (ITS (1^71), (listingiiishint? Kfnnefly v. (iri'en, 3 My. & K, (ill!>. Cf. Bradk-y v. Hicliis, !) Cli. D. 1«!»US7S) ; Nix.m V. Hamilton, 2 Dr. & Wal. MA. («) 31 V. c. 20. (h) Hherbfmeau v. .Teffs, 15 Cr. .')74 (ISC.it) ; Grey v. Ball, 2.3 Or. .3!I0 ; K.h- V. Bradeii, 24 (4r. .Wt. As to law heforc IsCm or l.S(iS .yr Crcy v. CoiifluT, V> (ir. 41!) ; Moore v. Bank of British North America, 15 (Jr. ',W, in which pos- M'ssiou iield sutKcient notice. .\s to constructive notice ■•<■"' last cited case als(> Ferrass v. McDonald, r» Gr. 310 ; Soilen v. .Stevens, 1 Gr. 340 ; Foster v. Beall, 15 (Jr. 244. (r) 31 V. c. 20 (Ont.), s. (17, now s. !I4. ((/) Hagarty, C.J., in Peterkin v. McFarlane, !) A. R. 443 (1884). ('•) Rose, J., in Bank of Montrtal v. .Stewart, 14 O. R. 482 (1^87). .Ve also Canada I'ermanent L. & S. Co. v. McKay, 32 U. C. C. V. 51 (1881 ). 600 REAL PROPERTY .STATUTES. ["><) Vic. r;> III 4 is i assigns could onerate the father's property with the aanount for which the son was liable, that being an unregistered equity (/). Unregistered lien of vendor ; — Equitable lien would include a vendor's lien. It is usual where tiie purchase money is not full}^ paid to reserve the lien in the registered conveyance by mentioning it in the consideration clause, e.g., as follows : " In consideration of two thousand dollars of which the sum of fifteen hundred dollars is still unpaiil and is a lien upon the said lands " (y). Equitable right to rectification o/ instrumevt i—The assignee of a mortgage without notice is not atfocted by the unregistered equity of a mortgagor (or his assigns) to have the mortgage reformed so as to exclude a portion of land not intended to be included in the mortgage (}i). In a Nova Scotia case where a mortijay-e conveved one- CD ^ tj sixth of a property instead of the whole, as intended, the right of an execution creditor was held to have priority over the equitable right to have the mortgage rectified (/). Effect of Registry Act on easement implied in (jranf : — " It is clearly established law that where the owner of two adjoining lots conve^'s one of tiiem he impliedly grants to the grantee all those continuous and apparent easements which are necessary to the reasonable use of the property granted, and which are at the time of the grant used by the owner of the entirety for the benefit of the part granted " {j ). Such being the case, what is the eHeet when the purchaser of the remaining ungranted lot regis- ters his deed without actual notice of such easements. (/■) Core V. Ontario Loan & Del)enture Co., 9 O. K. 230 (188:.), folLnviiiff Grey v. Ball, 23 Gr. 3!K). (y) Sec KettlewL'll v. Watson, 2(5 Cli. D. 501 (1884), as to nil.- uikUt tlit West RidinK Act (2 & 3 Anne, c. 4). (h) Bridges v. Real Estate Loan & Debenture Co., 8 O. K. 4!)7 (1885), Boyd, C. (/) Miller v. Diiggan, 23 N. S. R. 140 (1S!)0). (j) Street, J., in Israel v. Leith, 20 O. R. 3G7 (1890). m- i:i\ I; y i in Cap. 21.] EFFECT OF REGISTRY ACT ON EASEMENT. 601 This is considered with great care in Israel v. Leith (k), in the following instructive passage : — " The Registry Act requires instruments aflfecting lands to be registered ; originally it did not interfere with rights legal or equitable, arising otherwise than by instruments capable of being registered: Harrison v. Armour, 11 Gr. 303 (l). Then it was amended so as to postpone in certain cases unregistered equitable rights whether based upon written instruments or not, but this left untouched the case of legal rights arising otherwise tlian under written instruments. If, therefore, the rights in question here are to be treated as arising uniler an implied grant, they are outside the effect of the Registry Act; and, l)eing prior in point of time, and arising under a grant, they must prevail over the defendant, a subsefpient purchaser of the estate out of which they were grunted. " If they are to be treated as arising under ex])res8 grant, undoubtedly the Registry Act applies, but I am unable to see that the defendant's position is strengthened. There is notliing in the Act requiring the creation of legal rights or their transfer to be evidenced b}' any new form.s (if words ; it only requires that the instruments creating or transferring rights to lands shall be registered, and when registered in the due order of their dates, no pro- vision in the Act disturbs the effect which would have lieen given to them had no registry law prevailed. Here th(} plaintiff's conve^'ance is prior in point of time to the defendant's ; it passed certain legal rights to the plaintiff ill the land which the defendant subse(piently purchased. The instrument under which these rights passed is first in (/.•) /''. at ]). 3t»S ; ilii'ln of Patter.-*on, J. A., in Carter v. fJrasett, 14 A. K. "••(I, dissented from. (/) Cusp of e()uital)Ie mortgage by dejiosit of title deeds. Cf. McMaster v. I'liipps, 5Gr. 'ioS (LSr).'i), case wTierif a claim to rectify the description in an instrument given priority over a judg'nient ; Montgomery v. (Jore District Mutual Insce. Co., ItMir. .')01 (1M)4), lien of nintual insurance companies on prn|ierty insured ; Robson v. Carpenter, 11 Gr. 2y;< (18ti.'>), warrant of l)anU- niiitcy held registrable, ^ff also 14 C. L. T. 4."), "Easements and Kegistration. ' Ui mu. ;t- >l\ ■•■ i\i 602 RKAL PROPERTY STATUTES. [•'>« Vic. point of time and first in point of registration, and there- fore there is nothing in tlie Registry Act to take awav the rights acquired by the plaintiff under it." Taeking : — Briefl}'' stated, tacking was the action of an incumbrancer in uniting two or sevei-al incumbrances by the same mortgagor on the same land and refusing redemp- tion of the one incumbrance without also the payment of the other or others, with the result of shutting out any mesne incumbrancer. The following were the main prin- ciples of tacking : — I. A third mortgagee (without notice of second at time .^' 'advance of money) buying in the first mortgage miglit cavK the third to the first, " he shall thereby S(iueeze out the second mortgage " (m). TI. ^ idgment creditor buying in first mortgage could not tack v'-)- III. A first mortgagee (without notice) lending a further sum on a judgment (o) or mortgage ( p) might tack against mesne incumbrancers (q). IV. Where legal estate outstanding, incumbrancers ranked accori: — Section (JGof the Registry Act, 1805, and section 68 of the Registry Act, LSG8 (./•), have been held retrospective, and therefore affect e([uities existing before the present section was passed (//). Hoiv ^vrits of fi. fa. lose their priority: — Where an execution creditor sent his renewed writ to the wrong sheriff, hy mistake, he lost his priority over a subsequent (u) Mowat, V.C, in McLaren v. Fraser, 17 (j!r. 530 (1870). (<•) 5 (Ir. 2r)3. (If) .Tolinston v. Reiil, 20 «r. 2it3 (IHSl), .SpragRe, C. (■x) Botli tliese sections are now I't'iiiv.scntt'd by sectidn !!'). Cf-Miller v. llidwn, iitfid ; Fraser v. Xagle, 10 O. K. 241 ; sec also Armour on Titlt-tj, 03 ; Brewer v. Canada IVrnianent, 24 Gr. oO'.l. (.'/) Proiulfoot. .1., in Miller v. Brown. 3 O. IJ. 215 {1882), citing McDonald V. .McDonald, 14 (ir. 133, Bell v. Walker, 20 (ir. 558, Grey v. Ball, 23 (ir. 31)0. •V> Cooley V. Hniitl), 40 U. C. K. 543 (1877). s I '$} ' M{' mi 604 IlKAL I'liOl'liUTY .STATUTES. [3t5 Vic. P ff. (J m 1' incumbrancer who had full notice of the writ at the time of registering hi.s mortgage. The reasons thereof will appear from the following judgment of Ferguson, J. : "It is, I think, a matter of construction of the statute only. {See R. S. 0. 1877, c. 66, s. 11 and Con. rule 894). " Prlmii f<((')e, and according to law apart from this statute, an execution plaintiff having his writ in the hands of the sherift' must continue it there for execution, that is to say, the writ must remain in the hands of the sheriff to be executed, in order to preserve his priority ; and on this liis right in respect of priority depends. The statute pro- vides for the renewal of writs, and necessarily, I think, for the removal of the writ in each case out of tlie actual pos- session of the sheriff for the purposes of such renewal. This seems the exception to the general rule, and the time during which a writ may for the purpose of renewal he kept out of the hands of the sheriff, without interference with the right of priority, is, I think, commensurate witli the time reasonably necessary to effect the renewal, although the Courts may not in any case measure such time very nicel}- or with great particularity. In Meiw'dhj v. McKenzie, 8 E. tS: A. 209, the time was only fifteen days " [z). It may be as well to note the passing of 57 V. c. 20 : " An Act respecting writs of execution," section 2 of which Act is intended to provide for the renewing of a writ of execution only once in three years instead of as hitherto, once every y« ar (^O- We may here insert an Act which deals with the matter of mortgages for future advances : — (.;) A'.' Hiinc and Luadley, V.\ P. R. 1 (1880). Av further as to rights of jutiim creditors, Kussell v. Russell, 28 Gr. 410 (1881) ; Gall v. Hush, 8 Gr. executi. .. ^..,, . — .. « 300, and the Act of last session, 57 V 20. ('<) liut'^HC/v, from what starting point in the case of writs now in tiie sheriff's hands will the "prriod o/t/ine years " run ? »St'e section 2 of tiivid Act. Cap. 21.] AMENDING ACT. 005 57 Vict. CHAPTER 34. An Act to make further provision respecting ^lort- "^aces of lieal Estate. r)"fo HER 31 AJESTY, by and with the a-lvice and consent of the Leoislative Assembly of the Province of (Ontario, enacts as follows : — 1. Ti) reniiive doubts, everv mtirtrragf iliily ivj,'i^t'''''''l Mni'tKaRfs . . 1 , , • J xi '• • 1 1 11 1 1 1 how aticftfd against till' lands oompnsed therein is, and shall be dfciiKMl as i,,. s,,!,^,,,,,,. ajrainst the niortgas:or, hi^ lieir^, exeotitors, administrators, (.J,t; rc^'ister- assigns, and every other person claiming' by, through or under ed coiivey- liiin to be, a security upon such lands to the extent of the moneys '•■'>'-'^'-- or money's worth actually advanced or s\ip])lied to the mortgagor under the said mortgage (not exceeding the amount for which such mortgage is expressed to be a security), notwithstanding that the said moneys or money's worth, or some part thereof, were advanced or supplied after the registration of any convey- ance, mortgajfe, or other instrumeiit affecting the said mortgaged lands, execiwed by the mortgagor i.e was not ami should not be postponed to the advances made to W. their mortgagor, by the company after the registration of Jier mortgage ; and if the company when making such advances had had notice, that is actual notice ol' the plaintiff's mortgage, the authorities shew I think that this contention should succeed : Hopkbison v. Holt, U H. L. C, 514; Vvion Bank of Scotland v. National Jianl- of Scotland, 12 A C. 53; Blacldey v. Kenny, IG A R. 522 "(o). So far the learned judge and the new enactment are in accord, but his Lordship afterwards concludes : " that the plaintiff's mortgage should be declared to have priority over the advances made by the company after the registration of it, as such registration must 'in this vicir !,/> considered notice of it to the company at the time of their actjuiring further interests in the property by making the further advances on their mortgage " (f?). It is at this point that the Act of 57 V. intervenes to prevent such registration from being considered actual notice i.e. such actual notice as would give the subse(iuent '^mortgage priority over further advances. " Is expressed to he a security": — A distinction must be made between a mortgage for future advances and a further charge ; a further charge is evidently not intended to be affected by this enactment, and will re(iuire registra- tion to secure priority (e). (h) 24 O. R. 426, decided Jan. 2Gth 1894. (c) lb. at p. 428. ((/) lb. at p. 431, after discussing Boucher v. Smith, 9 Gr. 347 ; Trust & Loan Co. v. Shaw, 10 Gr. 440, and other cases. (e) Credland v. Potter, L. R. 18 Eq. 350 ; 10 Ch. 8 (1874) ; Moore \. Culverhouse, 27 Beav. 639(1800). For mortgage to secure future advances see Ex. p. Hawes, Re Byrnes estate, 15 Ir. L. R. 189, 373. R! * Cap. '-'l.] M/.S< Vi'AA.I .VAor.s' r/!oy/S/OXS~J'LAXS. GOT Rehifhm of .',7 V. c. .i/f, on, I r.C V. r. ,.'.;.•— 5(1 V. c. 24, s. 6, mako a provision by which inort;jjanreH to secure future advances are not to have prioi-ity if the inortjxairee jit the time of advance "has actual and express notice" that there are any chiinis of ni')cht,nics under sec. 4 of the Mechanics' Lien Act; nor unless tl e iiiorto-a^a'e gets from the mort<;a}^or a certain affidavit or declaration. The (juestion then ari.ses is the Act of 57 V. c. .S4, intended to change the law as enacted by 5() V. c. 24, s. 0. In favour of the view that the Act of 57 V. applies to mechanics liens is the phraseolony: "shall be deemed as a^'ainst the mortgagor, liis heirs, executors, administrators, assigns and every other pei-son clainnng by, through or under him ;" wliich would include alien-holder : also the fact that in the above cited decision in Pu'ire v. Candda Pcrmmn'of, some of the cases discussed 1*3' Ferguson, J., and forming the liasis of his decision are cases of mechanics liens {/"). Against the view that mechanics' liens are affected, the words: " executed by the mortgagor or his heirs, executors, 01- administrators " seem designed to exclude any persons who have become incumbrancers or assigns in Invitum of the mortgagor. MLSCELLANEOU.S PIIOVISION.S. PLANS. 96. (1) Where any land is surveyed and .subdivided for tlie purpose of being sold or conveyed in lots, by reference to a i)lan which has not been already registered, the jjerson making the subdivision shall, within three months from the date of the survey, file with the Registrar a plan of the land on a scale not less than 1 inch to every 4 chains. The i)lan shall show the number of the township, town or village lots and range or concession as originally laid out, and all the Iwundary lines thereof, within the limits of the land shewn on the said plan, and where Buch plan is a subdivision of a lot or lots on a former plan, it shall shew the numbers or other distinguishing marks of the lot or lots subdivided, and the boundary lines of Registration of plans when land svibdivided. h'cale of |)li)n, and what to shew. (/) A'.;/. Richards v. Chamberlain, 2.5 Gr. 402 ; McVean v. Tiffin, i;? A. R. ; McNamara v. Kirkland, 18 A. R. 271 ; Hutson v. Valliers, lit A. R. 161. i Iri J ti ^ 608 Jl/:.iL I'llOl'KllTY STATCTKS. [.W V 10. Plnns to bo iiiountt'd. Duty of thfi't'iifter Instrmncnts uiust con- form to fsuch i)lan. Penalty for I'l'fusinir to rcjjister plan. How rc- covcivd. Verification of signature to plans. Conditions as to regis- tration of planis. Plans of unpatented lands. such lot or lots. The plan Bhall also shew all roadM, stri-ets, jdts and commons, within tlio saine, with the oourses and wIiUIh thereof res|K'ctively, and the widt'.i and length of all lots uiid and the courses of all division lines between the res(M'ccive ]r,ts within the same, to-jjether with snoh other infornritiou as \^^ refpiired to shew distinctly the position of thx land being subdivided. R. .S. (). 18H7, c. 114, h. 84, s-s. 1. (2) Every such iilan shall V)e mounted on stifT paste-board of good quality, and in case it exceeds thirty iiiche' '"ugth by twenty-four inches in width shall \w> folded s t to exceed tiiat size. 5;{ V. c. 30, s, 5. (?i) Every sucii map or Jilan, before being registered, A\M be signed by the person or the chief otHcer of the cor|ioniti'in by whom or on wiiose behalf the same is filed, and siiall also be certified by some ijrovincial land surveyor in th" form uf Schedule O to this Act ; and thenceforth the Registrar sliall keep an index of the lands described anil de-ii^^rmitHd by ativ numlier or letter on the n»,ip or plan, by the name bywluili such person, corporation or comiiany designates the same in ih,- manner provided by this Act ; and all instruments affecting the land or any part thereijf, executed after the plan is fii.'il witli the Registrar shall cijuform ;:nd refer thereto, otherwjte fluy shall not bi- registered. R. S. O. 1,S87, c. 114. s. 81, s-s. L'. (4) In the case of refusal by such person, corporation or cun- pany, his or their executors, agt^nts or attorneys, or lessors, for two months after demand in writing for thii me, to lodge the said plan or map when required b . crson interested therein, or by the inspector so to do, he or they sliall incur a penalty of $20 for eacli and every calender luontli the said maj) or jilan remains unregistered, which ix-iialty iiimv be recovered by any person ccmiplaining, in any Division Court, in the county in which such lands are situated, in like niiuiinr us a common debt. R. S. O. c. 114, s. 84, s-s. 3. (5) The signature on a map or plan for the purposes of stil)- section ;» of this section shall be witnessed and verified as utlier instruments are under the said Act. 52 V. c. 19, s. tl. (G) The Registrar shall not accept any map or jilaii for the purposes of this Act, which does not comply with th III-: FILED 11 y WlhKM. 6oa For juUlition to suhsection 3 of section DO, nee ol V. c. -'i'), s. 3. The p''rsoa to til'' n I'lan, xltttahl he ifs ri;//if/id maker, i.f. the otvivr: — "Tlie .statute!//), vvliile it ister any instrument atiectin<;- the land ov any pai't thereof, executed after the ])lan is Hleil unl(;ss it confoi'ms to the [)lan"(/i). Remeihj for umndhorized tillmj of plan: — "It i.s clear that the existence on the tiles of the re^nstry oMice of an unauthorized plan may inconvenience the owner of the land it aftects to deal with, and lead to confusion in the investi'fation of titles. "If actual damaire is suffered from it, an action for damage will, I do not doubt, lie aj^Minst the wron,u;doer ; hut the rule that governs the analogous action for slander of title, will prevent a recovery when there has l»e»'U no actual damage, which is the present case : Malach>j v. Soper.^ ••) Bing. X. C. 371. " But to proceed for an order to take the unauthorized plan off tlie tiles is a different thing: and M. not being the owner at law or in e(|uity, but having only a right to lit'come owner on payment of .^2.50, there is no reason why immediately after the fifth of August, LS80, an order should not have been made, if it had been then asked for, com- pelling him to remove or amend the plan "(i'. (.'/) R. S. O. c. Ill, s. 82; the present section 90. {h) Patterson, J.A., in Xevitt v. McMurray, 14 A. R. 120 (188G). (0 n. H.R.P.S.— 39 i 610 RKAL PROPERTY STATi'T/iS. R ' 1 (^M 1 ■ |. In i'f "9 1 'if ft 1 ii' 1 i $ f. 1 [.'6 V ic. Mortf/cf/nr and mortgagee ; rvjlit to file plan .-—It seoins that the niort^'agor is not absolutely precluded from .sub- dividing and filing a plan of subdivision, although it would be a very unwise course in his own interest to do so, witli- out the consent of the mortgagee ; and no purchaser would accept the title of one of the subdivided lots under such circumstances. Patterson, J.A., says in Nev'itt v. McM ar- ray (j). " I am not prepared to hold that a mortgagor of land tleprives himself as of necessity, by the mere fact of mak- ing a mortgage, of the right to subdivide the land and tile a plan though one can imagine circumstances that might ^ive the mortgagee a right to object to his doing so " Rif/hts of mortgagee in case of foreclosure: — In a case where the mortgagor had subdivided the property into a great number of lots and registered several plans, and a question was raised as to how far the mortgagee was IkjuikI by such plans and subdivisions. Robertson, J., said : — " Is the mortgagee obliged to recognize these sul)- divisions ? Is his property to remain an open common :' Is he, after foreclosure, obliged to recognize the streets and lanes which have been laid out on it in accordance with these registered plans ? The learned Inspector (/,) says not, and I agree with him. That being the case, his tintil order of foreclosure will, when canned into the Registry Office, annihilate the subdivisions and plans, and the mortgagee can then close up all streets and wholly enclose the property. His mortgage would be a poor security if he could not"(^). Can sheriff sell tvlt/iout reference to new plan . — See Rathlmn V. CiUbertson (m). § '^ ill f (j) 14 A. R. 12G (18S0). Sec ih. for remedies of niortjf.igee in sudi cases. (A) Inspector of Kej;:.,tiy Offices. {I) Morae v. Lar.ib, 23 O. R. 108 (18!»3). Bnt ser ih. 608. (tu) 22 Cr. 40') (1875), sale of \individed interest in original township lots. Cap. 21.] INSTRUMENTS MUST CONFORM TO PLAN. Gil " Otherwise they shall not he rcf/istereil": — "The one and only case in which a registrar is forbidden to register a conveyance by reason oE the description of lands contained in it, is that of a conveyance made after the registration of the plan of a subdivision where the conveyance does not conform and refer to the plan : s-s.2,s.84, c. 114, R.S.O.(n). Now it appears to me that the only meaning of this section is to require that conveyances of land forming part of the .subdivision shall describe tlie lands conveyed by reference to the subdivision, and not by reference to the original lot which has been subdivided, and that, for the purpose of avoiding the confusion wl.ich might arise from describ- illy, lots by reference to a description which has been changed, the registrar shall refuse to register conveyances which do not conform and refer to the reiristered sub- division. I find no indication in tliis clause of an intention to reijuire a more particular or exact description of parcels wliich form part of a registered subdivision, than of par- cels which form part of an original lot, and yet, that it seems to me must be the effect of the section, if it is to bear the construction placed upon it bj^ the dldit to which I have referred. The conveyance under which the plaintitt" claims here complied M'ith the provisions of the section in (juestion, when it referred to the subdivision and plan of which the lot mentioned in it formed part ; the registrar CI mid not possibly have refused to register it; and being registered, it was, I think, notice of the conveyance of everything which according to law passed under the de- scription contained in it or as incident thereto"(o). Instrmnent 2wrtli/ capohb' and parthj {naipahlc of m/istration : — Where two lots, fourteen and fifteen, had Ijeen laid out into village lots and a plan filed, and the registrar was required to register a certificate of Uh i^endens m m (n) Ni)W s. !M) (3). For exce'ptioii, sre s. 1<)0, infm. (o) Street, J., in Israel v. Leith, 20 O. R. 301) (IS'.tO). 612 REAL PROPERTY STATUTES. M' [5<) Vic. '•> 1 I? '•I against lot sixteen and lots fourteen and fifteen, and he refused to register the same, it was held that he was right as to the lots fourteen and fifteen, Lut that there was no difficulty in recording the certificate against lot sixteen {p). Omission of owner to sir^n certificate: — See Wijominf/ v.Belliq). Uncertified ijlan, hoiv far registered deed mojj refer to : — " It was further objected that tlie plan was not made as is required by the Registry Law, R. S. O. c. Ill, s. 82, s-s. 2. It is quite true that the plan was not certified according to the requirements of the Registry Law of the time, and that the error has not since been rectified, and therefore the registrar could not treat nor has he treated it as suffi- cient to authorize the registration of deeds afi'ecting vilhi^e lots merely as such. Hence the deeds affecting village lut No. 7 were registered, and deeds affecting the other village lots conveyed, so far as disclosed by the evidence, wei-e registered as parts of lot 14 in the first concession of the township of Cumberland, and not in a separate rugistur book for village lots. The registry, or filing of the plan in the registry office, had no effect, I apprehend, under the Registry laws. " But reference might be made to it thei'e, as it might to that of any other document there or elsewhere, in a dvcd for the description or designation of a lot called a village lot, being part of a township lot, even if not stated in the deed to be part of a township lot, provided reference was made in the deed to that particular plan or other document for the description : and even popular understanding may be referretl to for the same purpose, when it is capable of proof: Dougall v. The Sandwich and Windsor Flank- and (;>) Re Thompson and Webster, 2.*> U. C. R. 2H7 (IHC.C). Cf. Ast.m v. Innis, 2<| Gr. 42 (1878), nnythinsr li^yond numbers of l(jts on ]>hm nf sub- dividiun in HurpIuBage and will nut vitiate. ('i) 24 Gr. 5«4, 608 (1877). Cap. 21.] PLAN INDEX. 613 Gravel Road Co., 12 U. C. R. 59. As to reputation of this kind, McMnrray v. Spicer, 5 Eq. 527 at p. 537"(/0. See further section 100, infra. 97. Section 06 of this Act shall apply as well to lands already surveyed or subdivided as to those which may here- after be surveyed or subdivided, subject to the provisions of section 101 of this Act. R. S. O. 1877, c. 114, s. 84, s-s. 4. Sec alsi) R. S. O. c. 152, s. (53. Applica- tion of sec. 98. The inspector shall liave power to direct where he deems Plan in- it necessary that a i)lan index book siiall be kept by the '-^^^ book, registrar in manner and form directed by the inspector. 53 V. c. 30, s. G. Plan index : — Qiucre, have public right to inspect plan index ? See abstract index, section 30, supra, 99. (1) Whenever from time to time the inspector of Alistr.act registry offices deems that the public convenience so requires, index tosub- he may direct a Registrar to subdivide any township, park or j^ v.nsiiiDs other lots in a city, town or village into such blocks for abstract etc. l)iiriM)ses as having regard to conveyances registered upon such lots and otherwise, he considers most convenient ; and in such case an abstract index shall lie prepared by the Registrar for each of the said blocks as if the same had been originally a separate lot ; such abstract index shall extend from tiie Crown Patent (m wards, and shall contain tliose registrations only tliat affect the subdivision to which the index relates. (2) Where the original lines of the lots do not form tiie boundaries of such blocks, public streets shall be taken as the boundaries tliereof. (3) Where a plan of a lot or i>art of a lot sulnlividing the same has heretofore been registered, or where a plan is here- after registered of a lot or part of a lot not previously sub- divided by a registered i)lan, the inspector may direct the Registrar to prepare an abstract of all instruments affecting ttie part subdivided, and to enter the same in the pat't? or pages of the abstract index book immediately preceding tlie abstract as to the first lot on such plan. (1) Whenever and as often as a further subdivision of any uf tile lots on said plan is made, tlie inspector may direct tlie m (»•) O'Connor,.!., in Ferguson v. Weissor, lOO. R. 23 (18s.-)). The decision in this case was reversed, 11 (). R. 8H, Ixit the above statt'inent was not affected. Cf. Muttlebury v. King, 44 V. C. R. 3."). 614 REAL PROPERTY STATUTES. [■% Vic. |M- 8 i w "m m> ' '-1 r 1 J 1^ 7 1' ' W 1 1 . if ' Registrar to prepare and enter in like manner an abstract of all instrumnnts affecting the part so subdivided from the tiling of the previous plan onwards. (')) The Registrar shall be allowed for preparing such abstracts, so far as the same relate to instruments registered prior to the inspector's directing the subdivision, such anumnt as the insiiector may determine to be reasonable for the work performed, and the same shall be paid by the owner who registers the \>\&n or out of the fees payable to the county or city under section 119 of this Act, as the inspector niuy direct. (6) For abstracts prepared for the purposes of plans liere- after registered, the Registrar shall be entitled to receive fn.in tlie )5ersons registering such jjlans, the usual fees for preparing such abstracts ; such fees to lie paid in addition to the fees for registering such plans. T>2 V. c. 19, s. 1. 100. No instrument referring to an unregistered i)lan sliall be registered unless wh(!re an instrument referring to such plan has been already registered in resjiect of the same land ; and in case the registrar objects to register any instrument on account of its referring to an unregistered jilan, he sliall be justified in doing so until and unless the person desiring regis- tration of the instrument refers the Registrar to the numlicr of an instrument previously registered in resjiect of tlie sunie land referring to the said unregistered plan. 52 V. c. 19, s. 2. 101. In sales of lands under surveys or subdivisions made before the fourth day of March, 18G8, where such surveys or subdivisions so differ from the manner in which such land was surveyed or granted by the Crown that tlie parcel so sold cannot be easily identified, the jilan or survey shall be regis- tered within six months after the passing of this Act if the plan or survey is still in existence and procurable for regis- tration, and filing under the next preceding section, anil if it is not, a new survey or plan shall be made by and at the joint expense of the persons who have made such surveys or subflivisions, and of all others interested therein, by some duly authorized provincial land surveyor, or as nearly as may be according to the proper original survey or suWivision, and the same when so made shall be filed as if under section !)G of this Act. R. S. O. 1887, c. 114, s. 85. "Fourth day of March, ISGS" :—'Di\te of assent to 31 V. c. 20. Registra- tion of in- struments referring to an unregis- tered plan. When planmustbe registered in case of lands sub- divided be- fore 4th March, 18G8. Plan not binding un- til some sale 103. In no case siiall any plan or survey, although filed and registered, be binding on the person so filing or registering tin' same, or upon any other person, unless a sale has been made Cap. 21.] REGISTRATION OF AND SALE BY PLAN. 615 according to such plan or survey, and in all caseH awendments or alterations of any such plan or survey may be ordered to be made, at the instance of the i^erson iilinfr or reffistering the same, or his assigns, by the High Court, or by a Judge f)f the said Court, or by the Judge of the County Court ot the county in which the lands lie, if on application for the pur- pose duly made, and uiwn hearing all parties concerned, it be thought fit and just so to order, and ujwn such terms and conditions as to costs and otherwise as may be deemed expe- dient. An appeal shall be from any such order to the Court of Apiieal. R. S. O. 1887, c. 114, s. 8(i. is made under it ; alterations in plan. Apical. Affreenient to fiell accord bif/ to plan : — An agreement to sell land " according to a plan deposited in the Land Registry Office, and numbered 319 " does not convey a warranty that the plan is deposited in accordance with the Act(s). Registration of and sale by plan ; rights of purchasers and public: — "Apart from the Registry Act altogether, no one would think of disputing the proposition that if a person sells lots according to a particular map or plan, the purchasers acquire an interest in the streets or lanes shown upon the plan adjoining the lots sold, which places them beyond vendor's future control to their injury. "It was admitted upon the argument that the mere registration of such a plan would not conclude the owner or confer any rights upon the public, although he might possibly — until the passing of Ch. 93 of the Consolidated Statutes, subset piently varied and amended by the 24th V. c. 49 — have been subjected to some inconvenience by the refusal of the registrar, after the registration of such a plan, to receive for registration a conveyance of the land, or any portion of it, described otherwise than in accordance with such sub-division Then how would the public ac(iuire rights by the mere sale I The purchasers could uncpiestion- ably insist upon the Line being kept open for their use, but is it not clear that by agreement among themselves they (k) Thompson v. Courtney, 2 Brit. CI. R. 8i) (l.S!)2), Kegbie, C.J. Hossin V. Wiilkvr, li Gr. fil'J. Cf. €16 REAL PROPERTY STATUTES. [m V IC. / r t. ^1 could abstain from opening it altogether or enforce its being maintained as a private way ^ Does it not fol low- that the owner might, therefore, under such circumstances by a re-purchase of all the lots sold, at all events before any actual use of the lane, re-invest himself with the same rights and dominion over the property which he had Ix'foie the sale. " How then is the question affected by the Registrv Act ? It is manifest that a registry law would be of little avail in cases where the original lot ha' judgment of l'att Gr. .5!(2 ; Atty. -Gen. v. Goderich, 5 Gr. iO'2 ; Sauirei'ii v. Church Society, Gr. 538. 'm Cup. 21.] PLAN AS EVIDENCE OF DEDICATION. G17 binding^, that eftbct e.Ktends only to the siib-divi.sions as recognized in registration, and to tiie titles acquired by conve^-ances in conformity with registered plans " (»). Efevt of 2^lcin (if* evidencing dedication to jyuhlic : — Osier, J. A., .says : " Neither the mere marking out upon a plan, of spaces for roads and streets, nor the registration of such a plan, nor the sale of lots according t(j it, nor all of these acts combined, will constitute an absolute dedication of the places so marked down as public roads or highways. " They may become so by anj'' acts from which an irrevocable intention to dedicate them may be inferred, and b}' acceptance by the nuuiicipality, and then section 527 (v) has its operation " (tf). Until dedication is absolute, jtlan not binding: — The same Judge continues : — " But until they do so, section 84 (.r) expressly provides that a plan, although tiled, is not binding, and though sales may have been made under it, is only binding sub modo, that is to say, to the extent that the Court or a Judge may think proper to permit a proposed amendment. " I do not understand that section 84 is intended to authorize the Judge to amend a plan bj' closing any road or street laid down thereon which has become a public highway in fact, though that is a fact he may have to determine "(>/). Subsequent ])lan will not afect actwtl dedic(dioi) : — Where there had been an actual dedication to the public, any words on a plan, registered subsequently, purporting (i() Piittcrsou, J. A., in lit Morton and Corporation of St. Thomas, (> A. H. 33()(l,Sfra. 1 ) ,11- t: 618 REAL PROPERTY STATUTES. [CC Vic. i<>; U' to restrict or (jualify the public use would be inopera- tive {z). Jariftdiction of the courts : — " The Jurisdiction thus conferred upon the Judge of tlie County Court to order the amendment of a claim is precisely the same as that con- ferred upon the several divisions of the Higii Court and the individual Judges thereof. All of these tribunals stand on the same footing as regards general jurisdicti(jn over the subject matter, which is the making of such an order in a proper case " (a). Status of party applyinfj is within jurisdiction of County Judge : — " Laying aside this question for the ]»r'> sent, I think the authorities conclusively show that the appellant's status, as a person who had registered the plan, or the assign of a person who had done so, was a (juestion of law and fact combined, for the County Judge — ^just as it would have been for the High Court or a Judge of that Court — to determine in the course of the irquiry, and that his decision is not examinable in prohibition. . . . The Judge had jurisdiction over the subject matter, and was thex'efore competent and bound to decide any facts or (juestions of law and fact combined, of which the status of the applicant was one necessary to be adjudicated upon in the course of the in(juiry " {h). Decision may he appealed from: — Although prohibi- tion may not lie, the decision of a Court or Judge under this section is subject to review on appeal (c). " At the instance of the person filing or his assigns" : — A subtle objection was raised in Re Waldie and Village of (.:) Peck V. CoriK.ratiun of Gait, 4G U. C. R. 211, 217 (18S1), Osier, .T. {a) Osier, .T. A., in /!<• Chicholm and Corporation of Oakville, 12 A. R. 225, citing Colonial Bank of Australasia v. Willan, L. K. 5 P. C. 417 ; btnilmry V. Fuller, '.) Ex. Ill ; He Bowen, 15 Jur. 119G ; Brittain v. Kinnaird, 1 Brod. & B. -J32 and other cases. (b) lb. (0 Osier, J. A., in Re Waldie & Village of Burlington, 13 A. R. 104 (ISM)). Cap. 21.] PERSON FILINU MAY BE INTENDING OWNER. 019 Burlington (d) : B. was the maker of a plan wliich was not rei^istered by him, but by the Council of Burlington. W. was an assign of B. The objection then arose, was \V. an assign of the person filing the plan ? Osier, J.A., held that the Council, being interested in respect of any streets laid down on the plan, had the right to file the plan under the Act (('), and were to be regarded as reprt ientatives of B. Consequently he treated the plan as B.'s plan antl as if filed by him or his representatives, with the result of giving W. a status to apply to have the plan amended. Permn filinrj vithin //ti.s section may J)e intendinf/ owner : — " It is not said that the person registering must then be the owner. It may be done in contemplation of becoming the owner. When the appellant registered, it may have been and probably was a perfectly futile pro- ceeding against everybody, but when he afterwards became the owner of the land he might adopt the plan as he, in fact, seems to have done. Now, as the owner, he asks that the plan thus registered by him may be amended, and I think he comes wathin the Act" (/). Plans (,f towns nt parcels of land owned at the original division thereof by different persons, and the same were not jointly surveyed and one entire i)lan of such sur- vey made and filed in accordance with section 9(5 of this Act, the Municipal Council of the township within which such unincor- ponited village is situated, or of such incorporated city, town or village shall, upon the written request of the inspector or of any person interested, addressed to the clerk of the municipality, immediately cause a plan of such city, town or village to be made uiKin the scale provided for \inder this Act, and to be registered ill the Registrar's office of the registry division within wiiicli thn municipality lies, which map orphan shall have endorsed thereon tile certificates of the clerk and hejid of the municipality and the ((') VA A. R. 108, 110. (' ) /.)'., under present section '.Mi. Where a jilan is tilefi, unless it can be shown to be tiled under same otlier section, it will be taken as if tiled under section !Mi. .vc /f). if) Osier, .I.A.. in lie Chisholm & Corporation of Oakville, 12 A. K. 'j;i (1.VS.-)) ; deciMon of Proudfoot, .T., 4 next after being required in manner aforesi.id so to do, tiic niinii- cipality shall incur the same in-nalty, and the sanif sliall Iw recoverable in the manner provided in section !Hi of this Act. Registra- tiojiof plans of township subdivi- sions in cer- tain cases. ()blign- tions not impaired. Power of county judge to order new plans to be tiled. (3) Where land in a township has l)een or shall hereiifti'r l)e .sold under surveys or subdivisions made in a maimer which so differs from that in which .such land was stu'veywl or grautid by the Crown, that the parcel sold cannot be easily identifird, and the map or plan has not been registered under this or any otiiir .\ct in that liehalf, the council of the township may, at the written request of the ins|)ector, or of any person inten'stfil, cause a plan of any such land to ))e made and registered in tiic same manner and with the same effect as in the case of an tuiiii- coriKjratfd village; and the expen.se.i attending the iirepanitiou of and filing of the map or i)lan shall be paid by a special rati' to be levied by as.sessnient on the land.s comj)rised in said niaj) or plan, as described in a by-law to be passed by the council for tln' purjiose of levying such rate; and the numiciiiality shall have the like remedies for the recovering of such last mentioned expenses as it has for compelling payment of taxes. (4) Nothing in this section contained sluill he deemed or construed to relieve any person from any liability, duty, obligii- ti(.n, or penalty provided or imposed by or luider any of the jiro- visions of section 90 (jf this Act. R. S. O. c. 114, s. .h7. (.*>) Where any land has been .sold or c. 21.] Ari'LlCATloy OF SECTION mi. 021 Co»t«. ivccordance with the records in tlie registry ottice, or from at'tiial xiirvey, as may bt found neccHsary, iinil n'^;i«tered in ai'drdaiice with the ju'ovisions of tliis Act, wiiicii plan shall have the order of the judKC endorsed tliereon, signed by him. The costs and expenses of and incidental to such jilan and the registration thereof siiall he borne by the jH-rson, corporation or municipality to be named by the juilge in the order. Such ordfr shall l)e entitled in the County Court and in tlie matter of the lands in ((uestion, and on filing tlie order with the clerk of the County Court the same may be enforced as if it were a judgment of the Court. Tiie registration of such plan shall be binding on all parties subsecpiently dealing with the lands or any part thereof included in the plan or any interest in or concerning the same, but shall not affect in any way the rights or interests of any owner or other jterson entitled at or prior to the date (jf registration. Etfect of registration. Application of section 10-> : — Section lO.'J ropivsents R. S. O. 1877, c. ill. s. ,S.5, s-ss. (1) and (2) ; with s-ss. (3) and (4) added by 48 V''. c. 28 (Ont.) 8. 2 ; the same being further amended by 49 V. c. 10 (Ont.) s. 80, wliich inserted the M'ord " city " before town wherever tlie latter occurs. The application of section 8.5, as it originally stood, is thus shewn by Osier, J.A., in distinouishino- its application from that of the preceding section, now section 102 : — " Section 85 applies when an incorporated town or village, or an unincorporated village, comprises tlifi'erent parcels of land owned at the original division thereof by different persons, and which were not jointly surveyed, and one entire plan of such survey made and hied in accord- ance with the 82nd section U/) There the municipality is required to have a plan of the town or vil- lage made and registered. " That is not this case, as the plan in question is a plan of a parcel of land owned and surveyed b}' one person, and of a part only of the land comprised in the village. " What the section contemplates is a compilation of the several unregistered plans or surveys of the different {g) Now section 96. 622 REAL PltOl'h.ltTV STATl'TKS. [•VJ Vic. .fl:'^i 1 •1 1 v ■1 I'- parcels of land which conipcjse the area of the town i)v village or a new plan of tho whole " {It). Delivery of pllUlM tci nitiniciiuil treasurer. Re-regis- tratir)!! in case regis- try Ixxiks or i)a|)ers are lost or tle«troyed. Registra- tion made before 4th March,1868, not to be deemed voiu 104. Every i)erHon wlio is required to lodge with the ReKis- trar a plan or map of any survey or Hub-divislon of land in any iiiiuiieipality shall at the same time deposit with the said Re);iH- trar a ,'iNtry division Vihere the lands are situate to register the instnniitnt upon production thereof, and no further |)roof shall be retpiircd by the Registrar than the original certificate of registration endorsed on such nistrument ; and any such instrument shall have priority according to the date of the original certificate. (2) The instrument shall be filed away by the Registrar and preserved with the records of his office, and in case memorials have not been copied into the registry lxK)ks in their jjrojier order, the inspector may cause the same to be entered in ]iro|)er books to be procured for the purjjose, in the same manner as provided in section 2it of this Act, and the Registrar shall he paid therefor in the same manner as under sub-section 7 of section 111 of this Act. R. S. 0. 1887, c. 114, s. 89. Defects in Reglstratinyi cxirnJ. 106. No registration of any dcf before the fourth day of Mar adjudged void by reason of dence or residences, addition oi witnesses to the deed or instrunu-i ■r instruniint nia'l':' snail be df nied or name or nan resi- ditions of the witness or t bein ■ improi)erly given (h) Re Waldie & "Village of Burlington, 13 A, R. 108 (ISytJ). Cap. 21.] DEFKCTIVK RKorSTIiA TIOX\ 023 fi'i- (■••rtaiii (ifft't't". tiiiii ill I looks for niiiiicor|ior- att'(l vil- or de.JcrilMTl in tlie rcpiMtfri-rl int'iiiorial tluTcof, or bcinp either in part or iiltoKt'tlier omitted from micli memorial' or by reason of any clerical error or omission of a foniml or teclmifrtl character therein; and all rejfistrations In^fore tin- said day effected in separate re^ristry IxKiks of unincorporated villa)7;i, not til be deemed void. Registra- tions, etc., not to l)e detailed void by absence of certifi- cates, etc., in margin of books. The case of i)art of a township made part of a new township without change of registry Ixioks. (/) 14 Gr. 086. 624 MEAL PROPERTY STATUTES. m f p. 1:1 ' S l; 't. [50 V ic. Proviso. l'r(jvisi). township or townships, and as if the same had continued to Ije aa so originally laid out, surveyed and named, then and in every such case, and for and in respect of all niatttis and \,m. poses of or relatinsr to any such instrument either before or after the said date and any and all such registrations, registry books and indexes, and the description therein of any land or premises, ?aid first mentioned township or townships .sliall lie deemed, considered and taketi an if the same iiad continued to be and remained as so originally laid out, surxeyed and named. (2) Nothing in this section contained shall be deemed f.r taken as relating to or affecting any inc(>rix)rated town (■■• village, or the land tlierein, or the registration of any instrument resiHxjting the same, from or after the time of the incorixinitiim of said town or village. (3) Nothing in this section contained shall impair or make defective any instrum<-nt or tlie registration then-of, hecausc iif any land being therein described or mentioned as situate in such new township, li. S. O. 1SS7, c. 114, s. '.)3. List qf C'rmon Grants to be furnished fn l'f;il.iirnr. HO. The Provincial Secretary shall once in every three niontlis, furnish to each Registrar a statement eontaiuiufr a list of the names of all jjersons to whom patents have issued from the Crown for grants of land witiiin the county since the former statements, and of all persons whose patents have been cancelled, since the former statements, and witli sucli general or particular descriptions, as the case may recpiire; ami tii^ Commissioner of Crown Lands shall furnish copies of all jilans or maps of towns and townships within the same, wliicli iiavi- not been aln^ady furnished, and in cases where no proptr siu-- vey of any township has been made he may cause a pro|i>r survey and plan thereof to be made and furnisju'd. It. .S. O. 1887, c. 114, s. !H. See also R. S. O. c. 24, ss. a.*)-.i7. Crovn f/ranfs : — See sections 2, 6(S and 84, suprn ; also Nicholson v. Paije (j). KKES OF RE(JI.STR.\RS. Provincial Secretarj' to furnish statement ()f Crown grants once every three montiis. Maps to be furnislied by Couuuis- f'ionerof Crown Lands. H ? Fe 111. Every Rt^gistrar shall V)e allowed the following fees for the following services, and no more : Other fees than in section 111 mentioned : — »SVtf .section 71, supra, for fee for registering letters of administnition !%' t>n (,/) 27 U. C. R. 318. Cap. 21.] JURISDICTION OF PROVINCE. 625 ill Ft- under Devolution of Estates Act ; also 57 V. c. 35, infra, for fee for registration of mortgage not in full, and of notice of .sale under power. For fees for deposits of title papers, see R. S. O. 1887, c. 115, ss. 7 & 8, supra. For fees for registration of receipts, see 58 V. c. 31, supra. Jurisdiction of Province ; are the fees payable to the refjistrar a tax ? — " If any one is unwilling to pay what is demanded, either because he supposes the demand to be illegal, or unreasonable, or for any cause short of the asser- tion of a right to have his deed registered without paying, he can avoid the payment by keeping his deed uru'egistered. Registration is not compulsory. There are, r loubt, risks to be run b} neglecting to register; but .iio law that created them is be^'^ond question intra vires. When a person, then, decides to register and pays the price fixed for the .service, or avails himself of the registration system in any other way as by investigating a registered title, and pays for the seai'ch, there is no reason to be f(jund for saying, nor has it been suggested, that he could have any pretence for recovering back what he has paid. The [>ay- iiient is neither immoral nor illegal. "I think it is a mistake to call it a tax at all. In tlio one case it is the charge made by legislative authoiifey for a service actually done. In the other it is the a)i])ro]n"ia- tion of the money to the remuneration Oj- reimbursement f)f the parties or bodies politic who take part in rendering the, service. " But, if it can be properly called a tax, it is clcarh' a I'.irect tax, whether we regard the simple fee for one regis- tration or the surplus payable at the end of the year to the. municipality "(k) (1) For the nfcessiiry entries and ccrtiHont*' in registering,' I'nr r^f:'.-- <'Vfry instrument other than those Itereinafter speciuUy iirnvided trati-ms fur, inchuhnif amon^ s\icli certiticate.-* the certiKcute on the ° '^ •' ' (k) PatterHon, J.A., in County of Hasting*' v. I'onton, ') A. R. 54(> (IS&O). H.H.P.8.— 10 626 REAL PROPERTY STATUTES. [••>fi ^'ic. W ^i W'^ If the in- HtriniH-nt includes dif- ferent lots in different Icxialities. duplicate, if any, fc )rty cents ; nnd for registerinpr every in-itrii- inent, other than those hereinafter specially provided for, si ; But in case the said in.struinent exceeds seven hundred words, then at the rate of fifteen cents for each additional one hundred words or the fractional part thereof, up to fourteen hundred words, and at the rate of ten cents for each ailditiouiil hundred words or fractional part thei-eof over fourteen luiiuln -d. And if the said instrument embraces different lots or jiarcels of land, situate in different nuniicipalities in tiie same cotmty, the repfistration and copying of such instrument together with all necessary entries and certificates in connection therewith, shall be considered separate and distinct repistratiims for each municipality in which the land is situate, and shall he jiaid for as follows : Where the aggregate cojiying does not exceed seven hundred worrls, .*'1.40 ; wiiere the aggregate copying exceeds seven hundred words, the sum of fifteen cents for every hundred words or fractional part thereof up to fourteen hundred words, in addition to the said sum of SI. 40; and where the aggregate copying exceeds fouiteen hundred words the sum f)f tn\ cents for every hundred words or fracti'Mial part thereof in addition to the above charges ; the said fees shall include all certificates and necessary tntries but in case the said instrument embraces more than four different lots or parcels of land in the same munici- pality, the Registrar sliall l)e allowed a fee of 5 cents for entering each lot or parcel in excess of four, but not to exceed S") for such entries. 5.5 V. c. 30, s. 7. Certifimte :— Cf. Keelf v. Ruhmt (/). Different lots in diferent mimicipalities : — Cf. Re Loiint{m) Refji4mtion in full :—See 57 V. c. 35; cf. Word v. Midland Ry. Co. \n). For fees for reffistratiou under Middlesex Act, consult Manton v. Lord Trm'o{o). Who pays the co>*ts of rerjistering riiortga;ie ?—S(.'e Sweetnam v. SweetnamijA [1) 5 U. C. R. 240 (1848). (w) 11 U. C. C. P. »7 (18<51) (n) 35 U. C. R. 120 (1874). (o) 17 Q. B. D. 7S.<. (/)) 6 P. R. 8.3. The mortgagor, even when he is a purchaser giving mort- gage to secure i»ayment of purchase money. Cap. 21.] SEARCHES AS TO TITLE. 627 (2) For searching the registry books and indexes relating to For searches the title of any lot or part of a lot of land as originally patented ^'^ ^^ \,\t\e. by the Crown, or as afterwards subdivided into smaller lot.-*, shewn by any registered map or plan thereof, when not exceed- ing four references, twenty-five cents, and five cents for every additional reference ; but in no case shall a general starch into the title to any particular lot, piece or parcel of land exceed the HUUJ of 82. A 'reference' under this sub-section shall mean a search of a copy of an instrument in the register, and if the abstract indexes only are examined, the total f<« for searching any such lot or part of a lot including four references, shall be twenty-five cents. The word ' lot ' shall mean one parcel of land as originally patented by the Crown and where such parcel has been suMivided shall include any one of the lots in any such subdivisicm or re-sul)division, a plan of wliich has been regis- teretl. No jjerson shall make copies of or extracts from any in^^truments, documents, books, papers or records in the registry ortiee, or of any matter contained therein, to an extent in the aggregate exceeding 300 words for any one lot or part of a lot, except on payment (in addition to the fees for search) of Ti cents for each 100 words or fractioJi thereof in excess of said .'WK) woifls. " Lot." — The definition contained in this section of the word " lot " is new lejjjislation. It does not, however, seem to aiiect tlie decision in Morse v. Lavih{«?cially required, the alphaljetical iiuk'x of names referred to in section 37 as to each name in the kioks of any one township, or other legally defined municipality in the county, twenty-five cents ; but if a general search as to any such name is made throughout the county, the aggregate of ffes for such search shall not exceed 81. Searching Alphabeti- cal Index. General search. Reason of search of alphabetical index : — The follow in MacNamara v. McLay (c.) shows the 'I ing decision (s) MacNamara v. McLay, 8 A. R. 319 (1S83). («) 20 U. C. C. P. 190 (1870). (u) 8 A. R. 338 (1883). Patterson, J. A. 630 REAL PBOPERTY STATUTES. [5(i Vic. t« ? :>*•>'" utility of the alphabetical index and also what amounts to a special requisition for a search in it. " The second item of complaint is for an over-charcre of twenty-five cents in the sum of fifty cents. The plaintiff tells the defendant that one Jacob Bergej's owns a lot the num- ber of which he does not know, in the Township of Brant, and he asks the defendant to tell him what incumbrances, if any, affect that lot. •' The defendant could only ascertain the lot by search- ing the alphabetical inde.x. For that a fee of twenty-tive cents is allowed by a separate clause from the one before quoted. The request of the plaintiff necessarily involved the request to make that search. The duty, under s. 21^ (I refer to the Eevised Statute), was to search concerning instruments registered mentioning any lot, etc.. The appli- cant's part was to name the lot concerning which the search was to be made. The registrar's answer to the re(|uest, if nothing were involved in it more than as stated in words, would properly be, ' I cannot make the search into the title until I know the lot. Tell me the lot and I will make the search,' The search of the alphabetical index was therefore a search for the information of the plaintiff, to enable him to tell the defendant of what lot he wanted the title searched. The information havincj been obtained at an expense of twenty-five cents, and the lot proving to be No. 29 in the 5th concession, the plaintiff, in effect, asks what incumbrances affect No 29, in the .5th concession of Brant ; and having been furnished with that information for no further charge than one other sum of twenty-five cents, I do not see that the complaint can properly come from his side. Abstracts of title. (4) For eveiy abstract of title to any specific parcel of land certified by the Registrar containing sncii particulars as to any number of tlie registered instruments affecting such j)arcel of land as the party searching may require, twenty -five cents ; and when such abstract exceeds one himdred words, fifteen cents for m Cap. 21.] NUMBER OF ORIGINAL MUST BE ASCERTAINED. 631 every additional hundred words ; and for copies of instruments when required, ten cents for each hundred words. The fees for every abstract shall appear on the face thereof and shall show the items making up the amount of such fees. Where there are two or more lots for whioh abstracts are required and the entries on such lots are identical, the registrar shall not be entitled to make an abstract for each lot separately, but the abstracts of title to such lots shall be included in one abstract, and the fees therefor shall be the same as if the abstract applied to one lot only, except that the registrar shall be entitled in addition thereto to a fee of twenty-five cents as for a search on each lot after the first lot, and for the first lot he shall he entitled to the same fees as are now payable under this Act in respect of one lot. (5) For each certificate furnished by the registrar, except those made under sub-sections 1 and 4 of this section, twenty- iive cents ; (6) For registration of any plan of town or village lots, including all necessary entries connected therewith, 81 ; but in case the plan embraces more than twenty lots, the registrar shall be allowed a fee of five cents for each lot in excess of twenty, not to exceed in the whole §5. (7) For furnishing the statements and copies required under sections 32 and 35 of this Act, to be paid by the county treasurer, to which any city, town, township, village or place belongs or is attached, the sum of ten cents for every folio of one hundred words contained in such statement so furnished or copy so made ; and the county treasurer shall also pay such sum as the inspector may order in writing, si)ecitying the nature of the service under any section of this Act, for repairing any book, or copying, mounting, or binding plans imder the provisions of section 35 of this Act ; and towns separated from counties for numicipal purposes, and cities in which no separate registry office exists shall bear a ratable proportion of the exjiense thereof, based on the assessment of all the municipalities within the jurisdiction of the county. (8) For drawing each affidavit and swearing the deponent thereto, twenty-five cents ; the same fee to be allowed for administering the oath when that only is required. (9) For exhibiting in the office each original registered instrument, including search for same, ten cents. Certificates. Plans. Statements under sec- tions 32 and 35. Affidavits. Shov.ing oripiiiiiN. The 71 umber of oru/lnal must Jir.st he ascertainc'l :— The (juestion what charge the registrar may make, when the requisitionist does not know the number of the required 632 HEAL PROPERTY STATUTES. [o*; vi W Ml f> * oriofinal, is answered by Patterson, J.A., in MacNamara v. McLay {v). " Then as the third instance the plaintiff goes acr,iin ti^ the defendant wishing to see an original document, the number of which he cannot state, and which the reo-jstrar cannot search for until he knows the number. His direct answer of course is, ' I cannot search till you give the number of the paper you want ; ' and the plaintitf lias to resort to means which happen to be in his power, to find the number. He knows the names of the parties to the deed and the land affected by it. By getting the registrar to search for the abstract index of the lot he can find the number. That search is accordingly made, and the number ascertained. The charge for that search is by the statute twenty-five cents. It is a search of the abstract index, such as I have before spoken of. Then having the number, the registrar is able to search for the paper it belongs to, and having found it to produce it. Those two services, the search for the document and the production of it, are covered by one fee of ten cents : ' For exhil^iting in the office each original registered instrument including search for the same, ten cents.' " The defendant charged thirty-five cents in all. I think he was clearly entitled to both the charges. In this I differ from one of the findings, in Ross v. McLay {w)." Exkihitimj oritjinal plan : — See Lindsay v. Corpora- tion of City of Toronto {x). Certificates (10) For registering each certificate of payment of mortgage of discharge money, and every other certificate excepting certificates providi^d o mor gage. ^^^ -^^ ^j^^ ^^^^^^ succeeding sub-section, including all entri(\s and certificates thereof, fifty cents ; but in case the said certificate (v) 8 A. R. 3.S!) (1883). (ic) 26 U. C. C. P. 100. {x) 25 U. C. C. P. 335 (1875). ' Cap. 21.] DISPUTES AS TO FEES. 633 Certitic.itH of disoliiugt.' of lien. Of payintnt of taxes. affects more than four different lots or parcels of liuul, tlie repris- trar sliall l)e allowed a fee of five (!ents f(jr each lot in excess of four, not to exceed in the whole 82 for the registration of such certificate. (11) The registrar shall be entitled to charge for registering a certificate under section 82, including all entries in resj)«'ct thereof, the same fees as are chargeable for registering ft certifi- cate (.f several figui-es, were but one word. K. S. O. 1887, c. 114, s. 1»."». 112. When any dispute arises in regard t(» any question of fees under this Act, the registrar shall fortiiwitii sulmiit tlie same to the inspector, and shall thereupon notify the j)ers(m interested or his agent of such submission, and the decision of the inspector upon the question submitted shall be final, unless api)ealed from and varied by api)eal as hereinafter mentioned. All decisions given by the inspector shall be in writing, and the appeal therefrom shall be in like manner, and subject t(j the same rules of practice as nearly as may be as an appeal from a master in chambers or local master. 53 V. c. 30, s. 2. For a case of appeal against the decision of tlie inspector see Morse v. Lamb (y). Vigwn-! Disjiutts as to fees. 113. Every Registrar shall keep jKjsted up in some conspicu- ous i)lace in his office a printed schedule of the fees and charges authorized under this Act. R. S. O. 18S7, c 114, s. 1)0. 114. Every Registrar shall \i\)on request of the jx^rson for wlioui the sei ice is performed, furnish a statement in detail of the fees charged by him in resjject of any matter for which fees are payable under the [u-ovisions of this Act. R. S. O. 1887, c. 114, s. !)7. 115. Should the treasurer of any county or city in which a separate Registrv Office is established, on the request of the Registrar for the duties performed according to this Act, refuse to pay the fees aTid allowances for any services required by this Act, the Registrar may prove and recover the same and tlie cost thereof from the corporation of the county or city in any Court Table of fees to be posted ill Registrar's office. Registrars to give state- ment of fees payable in any matter. Recovery of fees from municipal coriMjra- tious. i :f!l (//) 23 O. R. 107, GIO (18i)3). 034 HEAL PROPERTY STATUTES. ['>•) Vic. Evidence. of Record in Ontario ; and the InNpectcir'n ct-rtiticiite of tlii; amount and of the HerviccH rendered nhall l)e y'r/«i«/(M>cvidfnco of the right to recover. R. S. O. 1H87, c. 114, h. «8. See Campbell v. Corporation of York and Peel [z). Fees pay- able l)efore registration. 116. The Registrar shall not Ik- c(inii)elled to ngisttr any instrument unless the fees authorized by this Act are first paid thereon. R. S. O. 1887, c. 114, h. !»i». Non-payment of fees: — See Lynch v. WiUon{a). i i'» i £■ Registrars to keep ac- counts of fees. Registrar's annual re- turns. 117. (1) Kvery Registrar shall keep a sei)arate bocjk in which he shall enter, from day to day, all fees and iinolimicntH riH.cjvtd by him by virtue of his office, shewing separatfly the suihh received for registering each instrument, and for searclies, and for extracts or copies. (2) Every Registrar shall make, up to and including th*:erty ha > been transferred, which have been registered in his office during the next preceding month, and in sucli list shall include tlie names of the grantor, the grantee, tlie consideration sliown in such transfer, and a short descrijjtion of the land conveyed ; imjvided tiiat such list shall not include leases for less than twenty-one years, mort- gages, discliarges iif mortgage, or other like instruments, and that the Registrar shall be entitled to have .and receive therefor a fee of five cents for every instrument included in said list. 119. (1) Every Registrar siiall be entitled to retain to his own use in each year all the fees and emoluments received by him in that year up to .S2,.')00. R. S. O. 1«87, c. 114, s. 101. (2) Of the further fees and eiiiohinients received by ( ach Registrar in each year, in excess of .'*2,r)0<>, not exceeding -SSiOOO, he shall l)e entitled to ret.ain to his own use ninety per c»'nt. and no more. R. S. O. 1887, c. 114, s. 102. Registrar to furnish clerk or assessmejit commission- er witii lint of convey- ances. Registrar's eiuolmiient wlien fees do not ex- ceed .s2,r)00. Wlien fees ;ire between .S2,.")0(J and !J3,000. fir iir 636 llJ^AL I'liOPKRTV STATt'TES. [•(i Vi,., Whonfet's an- iH'tWfcii *t,(HH» aiifl Wh.-nfc's urt' Ix'twefn .Sa,r)(Mt and Wht'ii fi'cs ftFH Ix'twceii 8 »,<»(»() and 84,rKM». Wlifii feen 84,.jy each KtKistrar in each year, in t-xcenH of .*i3,r.OO, not execfdinff .*i4,00, he shall he entitled to retain to his own use fifty per cent, and no more. R. .S. o. 1887, c. 114, H. IOC). 120. (1) On the fifteenth day of January in each year every Registrar shall transmit to the treasurer of the county or city fur which, or for jiart of which, he is Registrar, a duplicate of the return required hy this Act, and shall also pay to such treasurer for the uses of the municipality such iirojwrtion of the fees and emoluments received by him during the preceding year, as under this Act he is not entitled to retain to his own use. ('!] Where a Registry Division includes a county or part of a county, and a city or town separated from the county for municijial jturiHise.s, the amount aforesaid shall be i)aid to the treasurer of the co\mty and to the treasurer of the city or town for the use of the municipality in the same proportions in wliicli the gn)ss fees and emoluments are derived from extracts, searches, registrations, and other charges in respect of lands situate in the county, and in respect of lands situate in the city or town. R. S. 0. 1887, c. 114, s. 107. Sections J JO, I.JO: Surplus to be opporfioneiJ ok receired :—"i:hG group of ss. 98-105 in R. S. O., c. Ill (6), is taken from 35 V. c. 27, the preamble of which recites that the income derived from fees in certain registry offices is excessive, and that it is ' expedient to make some provision in the premises.' These sections nmst be read together with section 02 (c), which regulates the fees allowed to be taken by the Registrar for services specified Api>lica- tion of sur- plus fees. Return. (/') Now sections 119, 120, 127. (f) Now section 111. Cap. 21.] METHOD OF ItECKONINu EMoLUMEXTK. 637 " The Act Jiuikes an apportioniiR'nt of every sin^'Ie iloUiir receivt'il l>y him ut'tor a certain anumnt, as and when he receives it. One part he is entitU'd to retain to his own use. To whose u.se does he receive the residue \ Clearly, as it seems to nie, to the use of the nnuiicipality. It is not as if the Act hud made an apportionment of the receipts of the j'ear as a whole. All that is done is to delay the accountinj^' for and payment over of the e.Kcess until the loth January "('/). Mi'tlnxl of rackoninij r0 Vic. ■<.W->^ '■Si. A concrete instance 8liowin<( the ini})ortance of the method used in these calculations is the case of Gr00, twenty per cent, thereof. ((') On the excess over .S3,r>00, ne)t exceeding .94,000, thirty Iter cent, thereof. {il) On the excess over .Sl.'KK), forty per cent, thereof. .'iS V. c. 17, 8. 17. {j) IK, pt-r Cameron, J. (k) Ih., per Burton, J. A., at 11 A. R. 477. (I) 20 O. R. 487 (18!)1) ; Rose, J. Percentage of fees pay- able to Provincial Treasurer. 55 V. c. 17. 640 REAL PROPERTY STATUTES. [•"■)<■' Vic. 45 ..f "NVtin- cniue " meaning of. Rntl-.Tlls to PiNiN iiicial Trfii.surer. Ft>e.s for services niider elfc- tion laws. Lii'iitcnaiit- ( tdvcniDi' may iiiaki- riiU's and regulatiiiiis. Disburse- ments suV)- ject to ri'visiou of insju'ctors. Fees under Rs. 32 and Xi, etc., not in- cluded in estimating Kcgistrar's fees. 122. For the purposfs of tliis Act, " net income " shall mean the excess of all fees and eiuoliniients, inchiiliii;,' reeei|its in tlie current year, whether on .uicomit of the earnings or salary of such year or of any former year or years after tliti 1st day of January, 18!t3. by the Registrar, after deducting tile ilisV)urse- Uients incident to the business of his office and after payment to the municipality of tlie proportion V. e. 17,s. 1. 123. On the l.")th day of January in eacli year every Regis, trar shall transmit to tiie Provincial Treasurer a return under oath of all fees and .'Uioluments, im.'luding salary, if any.whetli.'r received in cash or not, and also th'- disbursements incident to the business ipf his ortice up to and inclurling the ;ilst day of December of the pri!vious year, and siiall with such retiu'u trans- mit to the said Provincial Treasurer such iiroportion of tlie fr,-j and emoluments receiv.-d by liini during the precediui.' Year ,e< he is reipiireil under this Act to [lay to the said trea> ii "("i V. c. 17, s. 10. 124. Nothing ii'-rein contained shall be construed to apply to the fees oremolmneiits of any Ueuistrar received on act' i int iif services as retiirninv' otticer under tlie election .Vets of the Province of Ontario or Canada. ")."> V. c. 17, s. 12. 125. The Iiieutenant-< lovernor in Council may m.'kc rules and regulations for the management of the oMice of Registrar, anil may, by .such rules, confer on the inspector such powers ., may l)e deeme of this Act. R. S. O. 1.S87, c. 114, s. 108. ISrtl'ECTOlt OK KKiilSTltV ol-'KICKS, Appoint- J28. The Lietitenant-Govenior may, from time to time "pector and' apiK.int an InsiR.ctor of Registry Offices, whose duty shall be, his duties. Ins|M'ction (D To make a [.ersonal insin-ction of the building in whicii of building. ,..'\ch office is kept, and of the Ixioks, deeds, memorials and other instrnni"nts in each registry office ; J Cai). 21.] /Ml" OF lysi'Ki.'Tons. CAI ■I (2) Tu ssee that the ]ir jper Iwoks iiro jn'ovidocl, tlnit tlu-y ivre ill good order and condition, that the proper entries and regi.s- tnitions are made therein in a projH-r numner and in a due and proper form ani' inier, that the indexe>i are proj)erly kept, and that all th«.' memorials and other instruments are duly endorsed and certifiiKl, and preserved ; (;{) To ascertain that the oHice is kept duly o|>en at and for the proper times, and that it is at all times duly attended to by the registrar or his deputy ; (1) To settle on some uniform device for the official seals, and to see that the Registrars supply themselves therewith ; (■)) To inspect all new idistract and :dphabetical indexes, and to settle and certify the sums, if anj", char^'eable therefcjr ; (6) To ascertain whether tlie projier phwis recpured by this Act have licen tiled 'n the several Registry Offices, and where necessary, to enforce the jjrovisions of the law in that resjiect, and he may instruct the County Crown Attorney to take the necessary proceedings for that puriK)Sf ; (7) To re|H)rt ujion any vacancies by death or otherwise, in the otheis of Registrar and iJeputy Rt'gistrar ; {^) To inform the Registrar liow and in what manner he shall do any particular art or amend or correct whatever lu^ may find amiss ; and in case he tindx the work improperly performed liy any Registrar, In- shall have power to order a new bector may reffice. New indexes. I'lana. Reporting vacancies. Instruction of Uegistrar in ids duties. .Sufticiency or insuffui- ency of sureties. Ueportingto liieutenanl- ( Jovernor. Registrar to f\irnisii in- formation to ins])ector. I >uty of in- speetnr ull tiiidingwork ill arre.ir. I'ayof inspector. 642 REAL PIIOPERTY STATUTES. [•■<) Vif. SCHEDULE A. {»'cti'in 13.) KORM OK COVENANT OK HKOISTRAn. Know all men by thtw |)restnts, that we, .1. I!., Kefijistrar nt EHfjuire, and ('. />., of f]«., as He^'intrar of shall well, truly and faithfully [HTform the duties ami oMijriitiiitis of his ottice as such R«'gistrar, and that neither he nor his Dejuity siiall ne^fli- gently or wilfully misconduct himself in his said ottice to the damage of aiiy l)ers(»n or jjersons whomsoever ; nevertheless, it is hereby declared tliat no greater smn shall be recovered under this covenant against the several parties hereto than the following, that is to say : against the said -I. />'. in tlie wlmlc, S [l/ii niiioutil jh-((i ''7 (h'lir in Ctiiuiiil]; against the said ' '. />. and A'. /■'., .? resj)ectively [thr amount Ji. a ilKii ■ real and pers(iii:il) estate in t)ntario of the actual value of .•* over and alxne all charges upon, or incumbrances affecting the same. 2. ' IIV/c/'i' till' porli/ lia.s real <:-sii't' .) The said real estate consists .if (ih'.'tiriliinij the prnpi'rtii.) 3. I am wortii (the nmnunt for which the partii hiix hcKiim lini.h liii lin con ni'nt ) 8 over and above my just debts. 4. ^ly post ottice .address is as follows : (insert lutun. of f.ost ojifij. Swurn l)efore me at , in the^ County of , this day of . A.I). IS . 1 tt .--Si mi Cap. 21.] SL'llKDULKS. 64:} SCHEDULE C. (Section 20.) KOHM OK REOISTRAK's OATH Ob" OKKICK. Ontakio. CountV'.fl \(numv tiiul dvurrihi- ili/nnu nl ), liaviii^' houii appointpil by 1- the liitMiti'Uiiut-CJovt'riior to the otficc of Registrar, in ami for tlu- T) wit : J CiKD'i of Rriiiatrii Divinimi, tic.,) do swear tliat I will well, truly and faitiifully i)erforin ami execute all duties retjuired of nii-, under the laws of this IViivinoe, pertaining to the said ottiee, so long as I continue therein, and that T have not given directly or indirectly, nor a\ithori/.ed any |ierson to jrive, any money gratuity or reward whatsoever for procuring the sai'„ .Fudge of the County Court of /.'., Warden of the County of C44 HEAL PROPERTY STATUTES. [5. •i •" 00 2 3*0 2 •« i s Sp Z n» isia rt S C M 7j ' *^ ■*A c ^ S'.-H 1 •1 t» ! 11 1 ii: ^ -^y. 1? i i^ 5 1 1— ( O a '-: X SS'' M ^- "r ■^ 1 1 i c ^ S i § 3 i = '"- i 1 1 1 4 -i bo 'i 6t ^1 . F— "^ ■ "^ 'c ' ■ •^ • . ~ 1 JJ j; * j; c : ■ = ; ■ r^l •; 1 : ej eS : e! -* ?! """ ^ ^ 1 rr "« ■ ^ T. ■ ' ^ ..- - : ^ 1 1 • 1 r. ■-v :■ 1- ^ i i a * X- i ir." :J; 1 c 'J^ ^ t-, 1 0- ^ :so -^ :s:. < ! ! ! »"' — t; >i . ,■^ -r Ik n 1 .0 . 2 : : ■ • a S- r ^i- -3 ^ ■«»< (S ; i '^^ 1' 1 "tTJ; 7" 1 IE 1 Q ■ .- ir; K c r. T. T. s 1 1^ ; : :; : : : 1* i bb ^ i^ r' ii ? > 1 ;. . { *iv: X 7: a: ^r! x « :i i 4 -^ O ^ - i !^ a -^ t - r. 'S •r _^ ", ■s p^ Z u »-; 7 7 ■7 T i^ •/: Eli '■^ r" r. y. hN u. — — , ■r. 1— ( X 1* — ■ T. y. fi :i^ ^ ^i4 »£ X »— fc ^H j5 - ^ ►^ -5 ^< - « u w y w- I 5^. = ri fi 64(3 IltAL PHOl'ERTY STATUTEfi, [.'C Vic Cduntv of HCHEDULK G. (Sfction 40.) KORM OK AFKIOAVIT OF KXKCLTION. I, \ of ,of in the , make oath . the To Wit, ) County of and i^ay : 1. That I was jHTsonally present and did see the annexed ("/ within^ (and duplipate, if an//, uounlinij to the furt) (Inly -i^'iuil, sealed and executed by and the parties thereto. 2. Tiiat the said lo the fad) were executed at the ot (and duplicate, if anij, 'I'vontiini ;}. That I know the said partie-* (or imc m- i)io)r uf tlicit, ocr^nliiri ^. (li^ f'l'-i). 4. That I am a sub.scril)ing witness to tile said (and duplicate, accordiiif/ tn the/act). ' y ! i SCHEDILK H. (Secti'm 43.) AFFIDAVIT OF KXEC'ITIUN. County of \ I, .1. />'., of the , in tlu- (•■•mifv To wit : -' of ((■(/'////'//() make oatli and say : I. That I was iiersonally [tresent and did see the annexe] (••/■ >i-ii',:u) instrument (and duiilicate, if oiiij, accurdiin/ In f/n' fuel), dt;Iy si^rncd. seale 1 and executed by and the jiartics thereto. 'J. That the .said instrument was read over in my pre.sence and explained to the said, and that he appeared perfectlj' to understan'l the same, and was informed that it mip^ht be r(j,'istered as an incumbrance on iiis lands. ii. That the said instrument (and duplicate, (/ any, nccn-diH;! tn the fift), was executed at the of 4. That I know the said [)arties (or one or mnre of than, acc^nlinj to the fact). fi. That I am a subscribing witness to the said accnrdini) t" tin fact). Swoni, etc. (and duplicate, .■ i^ii Cftp.21.] srjjj-:/>f'rj:s. iiVt HCHKDULK 1. (Section :yO.) t'EKTIKICATK OK C'OINTV JllKJK IV MEC OK AKKIDAVIT UK KXKCL'TIO.V. County of ^ I, \ Judge of the County Court of the County of To Wit : ■' , certify that, from the proof adduccrl hy {na ir fiir /urnon jiroiluciiKj the proof anil .Htatr llif fi'idi'iive ijivcn) I am .>*fied of the duo execution of tlie within inntrument ("/■ of the instrunu^nt whereof the within i-i a copy, memorial or dujilicute, nx tin- oisc nunj U). Ah witnesnH my hand at dav of the A. !>., Is . .1. /;.. .ludKe of the County Court SCHKDULK J. (.St'f.'.'K. (i3.) KOIUI OK CEKTIKICATK CK KE(;lslliATIU.V. T certify tliiit tlie within registered in the Registry Office for the of in Book for the at o'clock of the A. D. IS . Number is duly entered and of the County of dav of Registrar. or Deputy Registrar. SCHKDl'LE K. {iiecti''H G7.) KOUM OK MIXITE 01' KEaiSTRATION. Entered and Registered this day of A. 1). at o'clock. 648 REAL PROPERTY STATUTEH, [Sf. Vic. SCHEDULE L. (Section 70.) KOHM OK DIHCHARfJE OK MORTOAOK. To the RegiHtrar of the County of : I, . of the , do certify that haH natiHtiiil all money due on, or to grow due on (or haH satisfied the sum of 'J hhh. tioned in), a certain mortgage made by of , to which mortgage iH'ars date the day of , A.l). IH , and was registered in the Registry Officer for the County of , on the day of , A.D. 18 , at minutes jiast o clock, noon, in Liber tor a^ No. (here huntidnthi ditii and date of regintration of each atsitction .*<2.) CEIITIKICATK OV DISCIIAHGE. To the Kigistrar of tht- County of C'mmty of . | I, of the in the County To wit : -* of ('iil'(ition) do lnTi'hy c«'rtify that , of the uf , in the county of (ailili- lion) , has .sati>ti('il all money (hie or to grow dtu' on {or lias .sati»fit'd tilt' sum of 8 iiientioni'd in) a certain instrinm-nt made t.f to , which instrument bears date the day of , A.D. IS , and was registered in the registry orfice for the Coixnty of on the day of , A.l). is , at mimites past o'clock, noon, in Liher for , as No. {here miutiun the ilnii and date of raj int ration of cav.h aseijnmvnt thereof, and the names of thr parties, or mention that such inKtru- UK at ha.1 not been asuiijmd as the fact via;/ In ), and that I anj the i)erson entitleil l)y law to receive the money, and that such instrument (or such sum of numey as aforesaid, or such part of the lands as is herein particularly described, that is to say : ,) is therefun^ discharged. Witness my hand tliis day I'f , A.L). IH . One witness. ^ A. li. } Afiiiavit of e.rccHtiod sinw as in dischaiye of nnrt'jaije. • SCUKDULE 0. (\ction iXi.) fOUM oK wli;\ K\();;".S CEKTIFICATK OK I'l.AN. I iiereby certify that this lihm accurately shews the manner in which the land included therein has been surveyed and subdivided by me; and that the said plan is [irepared in accordance with the provisions of ?7ie Reijistrii Art, /S!>.i. Date! , is . A. n., Provincial Land Surveyor. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I iM m IIM 112.2 IIIIU liliO 2.0 1.8 1.25 1.4 1.6 ^ 6" — ► Photographic Sciences Corporation iV S V ^9) V ;i/ ci>^ ^\ 6^ *?. f^? % « 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 <^ 6^ 650 REAL PROPERTY STATUTES. [56 Vic. SCHEDULE P. LIST OF BKOISTRY DIVISIONS. Part 1. The undermentioned trrbitorial divisions aa set forth in Chapter 5 of the Revised Statutes of Ontario, 1887 (except as otherwise mentioned), consti- tute separate registry divisions : — The Counties of — 1. Brant. 16. Lambton. 2. Bruce. 17. Leeds. 3. Carleton, excepting the City of 18. Lenno!: and Addington Ottawa. 19. Lincoln. 4. Duflferin. 20. Norfolk. 5. Dundas. 21. Ontario. 6. Elgin. 22. Oxford. 7. Essex. 23. Peel. 8. Fro.a'anac, e;; 'p:i*i". r thr City of 24. Peterborough. ';r.int.'st(.n. 25. Prescott. \'>. Ghnigiirry. 26. Prince Edward. 10. Grenville. 27. Renfrew. 11. Haldiniand. 28. Russell. 12. Halton. 29. Stormont. 13. Hastings. 30. Waterloo. 14. Huron. 31. Welland. 15. Kent, 32. Wentworth. The Ci- ies of— 33. Kingston: 35. Ottawa, 34. London. The Provisional County of — 36. Haliburton; and The Districts of— 37. Algoma. 40. Parry Sound. 38. Muskoka. 41. Rainy River, and 39. Nipissing. 42. Thunder Bay. Part 2. The undermentioned klectohal the Revised Statutes of Ontario, 1887 tute separate registry divisions :— - 43. Durham, East Riding. 44. Durham, West Riding. 45. Lanark, North Riding, excepting Carleton Place. 46. Lanark, South Ridiiigj and Carle- ton Place. 47. Middlesex, West Riding. 48. Northumberland, East Riding. DISTRICTS, as set forth in Chapter 7 of (except as otherwise mentioned), consti- 49. Northumberland, West Riding, and the township of South Monaghan. 50. Perth, North Riding and the township of Logan. 51. Perth, South Riding, excepting the township of Logan. 52. York, North Riding. m\ Cap. 21.] SCHEDULE P. 651 53. The East and North Ridings of Middlesex co. .t'^iute one registry division ; and 54. The East and West Ridings of York constitute one registry division. Part 3. The undermentioned registry divisions are constituted as hereinafter set forth :— 55. East Toronto consists of all that part of the citj' of Toronto lying east of Spadina Avenue and Spadina Road, continued south and north, to the boundaries of the city, and shall include the land on Spadina Avenue now occupied by Knox College, and the Island lying south of the city of Toronto. 5G. West Toronto consists of all that part of the said city lying west of Spadina Avenue and Spadina Road, continued as aforesaid to the boundaries of the city. 57. The county of Simcoe consists of the townships of Adjala, Essa, Flos, West Gwillimbury, Innisfil, Matchedash, Medonte, Nattawasaga, North Orillia, South Orillia, Oro, Sunnidale, Tay, Tecumseth, Tiny, Tosorontio, and Vespra ; the towns of Barrie, Collingwood, Orillia and Penetanguishene, and the incorporated villages of Alliston, Bradford, Slidland, Stayner, Beeton and Tottenham. 58. The county of Victoria consists of the townships of Be.xley, Cardeu, Dalton, Digby, Eldon, Emily, Fenelon, Laxton, Longford, Mariposa, Ops, Somerville and Verulam ; the town of Lindsay and the incorpo- rated villages of Bobcaygeon, Fenelon Falls, Woodville, and Omemee. 59. Grey, North Riding, consists of the townships of Collingwood, Derby, Euphrasia, Holland, Keppel, St. Vincent, Sarawak, Sullivan and Sydenham, and the towns of Meaford, Owen Sound and Thombury. (iO. Grey, South Riding, consists of the townships of Artemesia, Bentinck, Egremont, Glenelg, Normanby, Osprey and Proton, and the town of Durham. Gl. Wellington, North Riding, consists of the townships of Arthur, Minto, Maryborough, Peel and West Luther ; the towns of Harriston, Mount Forrest and Palmerston, and the incorporated villages of Arthur, Clifford and Drayton. 02. Wellington, South and Centre Ridings, consists of the townships of Guelph, Eramosa, Erin, Nichol, Pilkington, West Garafraxa and Puslinch ; the city of Guelph, and the incorporated villages of Elora, Fergus and Erin. Note. — The townships hereinbefore mentioned include all towns and incorporated villages situated within the limits thereof respbctively fi ■MM i 57 VIC. CHAPTER 35. •11 i 57 VIC. CHAPTER 35. An Act to amend The Registry Act, 1893. HER MAJESTY, by and with the advice and consent of the Legislativ'e Assembly of the Province of Ontario, enacts as follows : — 1. The mortgagee named in any mortgage, hereafter exe- cuted, or the solicitor or agent of such mortgagee, may endorse thereon the words "not to be registered in full," and in such case the Registrar shall register the mortgage in the manner ])rovided by The Registry Act, 1S93, in the case of mortgages affecting lands, except that such mortgage shall not be copied into the books kept for that purpose in the registry office. (2) Upon registration in the manner provided by sub-section 1 of this section, the fee payable for registration of any mort- trage, not including more than four distinct parcels vi land, having a separate lieading in the abstract index, shall be SI, and for each additional lot or part of it thereafter requirinjf entry to bo made under a separate lieading in the abstract index, .") cents. (3) After the registration of any mortgage in the manner hereinbefore provided, the Registrar, ujx)n the application of any person claiming to be interested in the mortgaged lands, :vnd upon i)ayment of the fees prescribed by The Jler/istry Act, IS'.lS, less the amount already paid for registraticm under this Act, shall cause such mortgage to Vie copied out in full in the book kept for that purpose in the registry office. (4) It shall be the duty of tlie registrar to indicate in the abstract index, in tlie case of the registration of every mortgage liereafter, whether tlie same has or has not been registered in full, by marking opposite the same in the said abstract index the words " registttred in full," or " not registered in full," as the case mav be. Mortgages not register- ed in full. 56 V. c. 21. Fee on reg- istration. Subsequent registry in in full.' 5(i V. 0. 21. Note in ab- stract index as to manner of registrar- tion. •>/ V. c. 3o, s. 1 .—The ol^ject of Ohject and defects of ■'. the first section of 57 V. c. 35 is the saving of registration 'I 654 REAL PROPlUiTY UTATUIKS. [o7 Vie. P <. * - 'ect of the same shall be as in the case of any other registered instrument except as to the copying thereof, and the fee to be paid such Registrar for registering the same shall be fifty cents. Cap. 35.] REGISTRATION OF NOTICE OF POWER OF SALE. 662 INDEX. Attormhent — efifect >£, on practice of indorsing writs, 133 (x) disadvantages of, 134 to two mortgagees, 134 forms of— clauses, 135 sham, 135 not intended for re-payment of principal, 135 (g) Auctions of Estates, 65 Auctioneer — meaning of, 65 liability of, 67 Autre vie — estates pur, 236 B. St" ■■mfk'> Bailiff — possession by — see Caretaker Bankruptcy — registration of proceedings in, 529, 531 Baptism — deposit of proof of, 517, 518 Bar of Dower, 238. 257 by married woman under age — «cc 57 V. c. 41 Bargain and sale — origin of, 15 can corporation convey by, 51 enrolment of, 52 registration of, 53 by deed poll, 54 Barns — included in conveyance, 45 meaning of, 46 Base Fee — provision in Statute of Limitations in case of, 457 Bed of river — see Water-course Beneficial Owner — conveyance by, 58, 59 meaning of, 59 Bill — partition proceedings by, 169, 171 Birth — deposit of proof of, 517, 518 Bond — registration of, 528, 530 Books — under Registry Act — see Ih. Boundaries — significance under Real Property Limitations Act— s^e lb. Breach of condition — see Forfeiture of covenant in conveyance, 225, 226 damages for, 226 onus of proof, 230 of trust — see Trust INDEX. 663 Brother and sister —descents between, 296, 307, 331 younger — meaning of, 415 possession of, 414, 415 BiTiiiDiNO — meaning of, 46 BciLDiNos — sale of standing, 7 BcRiAL — deposit of proof of, 517, 618 By-law — registration of, 529, 583, 584 C. Canal— see Watercourse Caretaker — under Real Property Limitations Act — see lb. Cases— where conflict of — in vendor and purchaser application, 511 Caution — registered by personal representative, 316, 320. Cellar — possession of, 357 (a) Certificate — deposit of — under cap. 115 ; 517, 518 of action brought— «ec Lis pendens of payment — see Discharge of mortgage assignment in lieu of, 100 Certiorari — in proceedings under Partition Act, 165 Cestui que trust — under Real Property Limitation Act — see lb. Chambers — jurisdiction in partition of Judge in, 214 Master in, 214 Chancery — jurisdiction of, in partition, 156 Change of interest by death, 213 Charge — see Mortgage — Trust Charities — under Real Property Limitation Act— sec lb. Chattels real, 286 Chimney — see Air Chose in action, 9, 10 Chcrch property — registration of, 690 Claim — see Continual claim for compensation — between vendor and purchaser, 504 see Compensation Cloud on title — registration of, 531 Coal — possession cf , 357 (s) prescriptive rights in, 481 («) Collaterals— descent to, 295, 299, 335, 337 > fi 664 INDEX. ft' * V? M I iB AT CoMMiBHioN — agretiinents to sell land on. 6',)0 CoMMiKsioNEKS — affidavits before, 565 Commodities— included in conveyances, 4r» nature of, 50 Common Law — estates limited under the rules of, 38 pleas — jurisdiction of Court in partition, 157 rights of, are incorporeal hereditaments, fi included in conveyances, 45 meaning of, 47 prescription in case of — see under Real Property Limita- tion Act, profits a 'prendre Compensation for improvements under mistake of title, 80, 81 rules for estimating, 80 et seq. to mistaken owner, 83 to mortgagee, 83 (z) to purchaser at tax sale, 84 for improvements pending litigation, 84 in cases of unskilful survey, 85 " Computed " — meaning of; in lease, 241 Concealment of deeds, 96 right — under Statute of Limitations, 473 Condition — see Covenant — Forfeiture, etc. of sale — question between vendor and purchaser as to, 508 Confirmation of report in partition, 105 sale, 204 Consideration — receipt for— «^2 258 ; 181, 310 309; 309 311; 2<)J 326; 214 345; 115 359; 278 360; 278 390; 214 402; 491 421-433; 214 444-446; 214 .-.GO ; 554 5S.T: 214 894; 604 964 ; ;,sv; 965; 173, 210 989 ; 169, 172, i^^,174, e} 1195 ; 20!) 1216 ; 214 LVDEX. 665 Consolidation of mortgages, HI, 60'i, 603 CoN'STBDCTivE Dotice — sec Notice. posaesaion — see Real Property Limitation Act, Posseasion Contingent remainders — effect of feoffment on, 19 how far disposable by deed, 37 nature of, 37, 38 former modes of assigning, 39 hew far assignable inter vivos, 39 limitation of, 70, 71 destruction of, 71, 72 Continual claim— effect of, 409 definition of, 410 Contract — question as to validity of, between vendor and purchaser, n05 CoNTBiBHTioN to reut-cliarge, 68 CoxvEV — meaning of, 11, 13, 100 " Convey, assign and deliver," are operative words, 13 Conveyance — meaning of , 11, 99 by deed, 11 ordinary sense of, 11 by a man to himself jointly with another, 23, '24 by husband to wife, 23, 25 by wife to husband, 23, 25 what included in, 45 covenants implied in, 57 et seq. by beneficial owner, 57 form of, 98 question as to form of, 508 registration of, 528 under power of sale, 141 Partition Act, 196, 204, 205 Conveyances — Short Forms of — Act respecting — see lb. under S. Co-PARCENEFs — partition between, 158, 160 possession of, 411 Corporation — may convey by bargain and sale, 51 can, stand seised to use, 52 Corporeal tenements — lie in grant, 14 Costs — assignment of lease as security for, 35 in cases of unskilful survey, 85 purchases of reversions, 93 of order removing custody of title papers, 521 of power of sale proceedings, how paid, 141 taxation of, 143, 151 li ! G66 INDEX. ! . I % I Costs — unnecessary, in mortgage proceedings, 149 under Partition Act — sec lb. under Short Forms Acts, 220 under Vendor and Purchaser Act— see lb. County — what included in, 529 council — duty to furnish registrar with books, 536 courts — jurisdiction of, 31 in partition, 164 to amend plans, 615, 618 to permit further proceedings after notice of sale, 149 Court — payment into, against incumbrances, 55 arrears of interest on, 428 where partition proceedings instituted, 164 Cousins— descent to, 299 Covenant — action on — how affected by Statute of Limitations, 440 by a man with himself, 26 for quiet enjoyment, implied by any words of assurance, 42 how far created by " grant " or ♦' exchange," 41 implied, runs with estate, 59 may be varied, 59 by cap. 100 are not implied, 59 in conveyance for value, 68 right to convey, 58 quiet enjoyment, 68 freedom from incumbrances, 58 further assurance, 68 in conveyance of leaseholds, 58 validity of lease, 58 in conveyance by trustee, 58 against incumbrances, 58 in mortgage, 112 payment of mortgage money, 112 good title, 112 right to convey, 112 quiet possession, 112 free from incumbrances, 112 further assurances, 112 no act to incumber, 112 danger of using, 112 in mortgage of leaseholds, 113 validity of lease, 113 vi ■■^,i ; INDEX. 667 CovENANTR — implied, in mortgage of leaseholds, payment of rent and per- formance of covenants, 113 in mortgages are joint and several, 113 joint and several, 114 meaning of, 41 questions as to, between vendor and purchaser, 508 Registrar's — see Registry Act under Covenants under Short Forms Act — see lb. Coverture as a dif^ability Creditors— rights of — in partition, 201, 202 Crown grants — registration of— »ee Registry Act, registrar Dates— 6th March, 1834 ; 52, 53 30th May, 1849 ; 71, 74 1st Jan., 1850; 45,4(3 2ad Aug., 1851 ; 71, 74 1st Jan., 1866 ; 575 4th March, 1865 ; 68, 614, 62.< 29th March, 1873 ; 623 2l8t Dec, 1874 ; 353 INDEX. 669 Dates— lOth Feb , 1876 ; 501 2nd March, 1877 ; 71, 74 1st July, 1877 ; 353 Ist July, 1866 ; 23, 45, 57, 108, 115 Death — deposit of proof of, 517 when ri^ht accrues under Statute of Limitations, 381 Debt — application of property to pay, 308 included in property, 9, 10 purchaser from administrator to hold free from, 318 Declakation — »ee Statutory Declaration Decuee — xee Judgment Dedication of highway — by-laws authorizing, 583, 584 plans affecting, 613, 617 Deed— effect of under Partition Act, 205 is a bond a? 37 (p) occupant under, cannot set up Statute of Limitations, 367 recitals in, effect of, 501 registration of, 528 under Short Forms Acts — see lb. see further, under Property (Law and Transfer Act) Default on mortgage, payment after, 144 when notice required, 145 Defined channel — see Water- course Delay — see Acquiescence Demise and lease, 241 Deposit — under Custody of Title Deeds Act — see lb. Depredations— effect of, under Statute of Limitations, 375 Descendants — deposit of proof of, 517 of any ancestor, 324 Descent cast, 410 Descents— under Devolution of Estates Act — see lb. Description -under Registry Act — see lb. Devise— question as to what passes by, 507 Devisee — see " Trust '' — " Legacy " is, a necessary party ? 290 requistiou as to right of, to convey, 505 title of, 289, 290 Devolution of Estates Act, 281 et seq. administration ad litem, 293 advancement, 295, 301, 312 et seq. affidavits, 319 m 'I I i?- . 670 ISDEX. Devolution of Estates Act —Continued. application of Act, 286 " as living," 335 "asanrance," 324 attainder, 329 brother and sister, 296, 307, 331 caution, 316, 320 " chattels real," 286 collaterals, 295, 299, 335, 337 composition of, cap. 108 ; 281 cousins, 299 curtesy, tenancy by, 303, 304, 341 debts, application of property to pay, 308 purchaser to hold free from, 31 "descendants of any ancestor," 324 descent, 324 before 1st July, 1834 ; 325 before Ist January, 1852 ; 330 after 1st January. 1852 ; 334 devisee— title of, 289, 290 how far necessary party, 290 " devolve," Oil devolution on personal representative, 289 " distributed," meaning of, 291 dower— right of widow to, 301, 302, 341 " dying on or after," 285 ecclesiastical courts, 297 e£Fect of Act on jurisprudence, 281 entry, proof of, 329 txecutor, powers of, yi2 father, 307, 330. 333, 337 foreigners, 298, 341 general testamentary power, 288 grand parents and grandchildren, 301 half-blood, 301, 333, 340 heirs, 316 " heirs and assigns," 315 hotchpot, 295. 301, 342 husbands and wives, 296, 303, 304, 306, 307 illegitimate, 326, 341 in Ontario, 287 infants, 309 inheritance, 334 intestacy, 307 partial, 390 ■I '11 INDEX. Devolution of Estates Act — Continued. joint tenants — when grantees take aa, 330 land, 324 legal representative — »ee personal representative lineal ancestor, 331 male heir preferred, 332 married woman, SOO, 807 mortgagor — personal representative of 323 mother, 307, 335 nephew and niece, 300 next of kin, 295 official guardian, 309, 310, 317 only child, 301, 341 ordinaries, 294, 297 origin of Act, 281 partial intestacy, 299 per capita, 335 per stirpes, 335 '- person last entitled to land," 324 " person through whom ancestor," etc., 324 personal property, 291, 292 personal representative, 289, 291, 295, 2'J3, 312, 31') personal representative — powers of, 312, 317 posthumous children, 301, 341 " power of appointment," 288 •• purchaser," 324 last, descent through, 325, 32C presumption of, 326 when heir takes aa, 327. 328 •' real estate," 334 real representative under, 282 remainders, rule as to, 328 rent, 324 representation amongst collaterals, 295, 299 residue, 289 rules of procedure, 31 9 security by administrators, 304 power of court as to, 305 for succession duty, 305 Shelley's Case, rule in, 328 Statutes of Distribution, 294 et seq. origin of, 297 rules of construction, 298 superior lines, 333 table of descent, :^48 671 fs WW' 072 INDEX. Devolution of Estates Xat—Contimwd. time to elapse before distribution, 29') of vesting of estate, 81(), 819 uncle and aunt, 300 validity of past sales, 318 widow — dower of, 301 election by, 301, 302 share of, 303 will — heir taking under, 327 annexed — adminisiratiou witli. 2!t6 withdrawal of caution, 317 DiKECTiONS for use of forms — »ee Short Forms Acts DisAKiLiTiES — under Real Property Limitation Act— «c'e lb. Discharge of lieu note, oS3, 649 mortgage — assignment in lieu of, 101, 102 by executors, 120, 122 valid whenever given, 122 mortgagor need not accept, 123 registration necessary to, 123 advantage not to register, 124 must be registered, 124 (i) bar of entail by, 124 effect of, after transfer of equity, 124 receipts of mortgagees on joint account, 125 mortgagee sufficient, 125 under Registry Act — see lb. Disclaimer of power by trustee, 62 DiscoN'TiNUANCE Under Real Property Limitation Act— nee lb. "Dispose of " — meaning of, 40 '* Disposition'" — meaning of, 40 Dispossession under Real Property Limitation Act— «ee lb. Disseisin — see " Dispossession " Distrain — see Distress Distress — mortgagee's right of, 130 limited to what goods, 131 one year's arrears, 131 goods must be sol' , 131 distinguished from attornment, 131 simple distress clause, 133 forms of clause, 135 under Short Forms Acj, 270 under Real Property Limitation Act— «««; lb. '• Distrxbuted '—meaning of, 291 INDEX. 673 Ditches— included in conveyance, 45, 48 poBseesion of, 367 («) Diversion of water — »ee Water-course Divisions— registry— »«« under Registry Act DivoBCE— deposit of proof of, 617, 518 DocDHENT — meaning of, in cap. 115; 617 Dower— bar of, 238, 257 by married woman under a.ge—*ee 67 V. c. 41 under Devolution of Estates Act, 301. 302, 311 Heal Property Limitation Act — t -.' lb, DowsBSSEB as Parties under Partition Act, 153, l-A, 1G6, 2U2, 203 Draft deed as evidence, 419 " Due Diligence," 475 Duplicate instruments, 571 " Dtino on or after," 285 " Dwelling '- -meaning of, 46 E. Easements— implied in grants, 600 included in conveyances, 45 what are ? 49 prescription of — tee under Keal Property Limitation Act Ecclesiastical courts, 297 Edifices included in conveyanceR, 45, 40 Election by widow whether to take dower, 301 how — may be made, 301 by will, 302 before Devolution of Estates Act, 302 Emoluments included in conveyances, 45 what are ? 60 of registrar — tee Fees Endorsements to be made on deposits under cap. 11/), 518 duplicate originals, 671 " Enjoyed with," 50 Enjoyment — see Possession — Prescription " as of right," 491 Enlargement by express trusts, 452 Enrolment of bargain and sale, 52 H.R.P.8.— 43 674 INDEX. IJ'.: . Entail — requisition aa to bar of, 606 Entries by registrar in indexes— and corrections, 594 penalty for unauthorized, 594 where deposits of title deeds, 518, 519 Entbt— proof of, 829 right of — nature of, 40 assignment of, 88, 40 how far created by word " exchange," 41 under Beal Property Limitation Act— lee Ih. Equitable and legal estates in partition, 158, 163 mortgage by deposit, 601 (I) Equities— unregistered, 596, 599, 600 occult, 603 Equity of redemption under Beal Property Limitation Act, 352 Estate — real — meaning of, 8, 334 meaning of, 6 words of limitation of, 19 et seq. see Tenancy — Property Estates tail —bar of, 456 see Remainderman Estoppel — by consent to a conveyance, 419 to a mortgage, 419 by draft deed, 419 Evidence — see 'Registration " — " Vendor and Purchaser Act," etc. Exceptions and disabilities — see under Real /'roperty Limitation Act "express" under Short Forms Acts, 223, 243 Exchange — must be by deed, 29 how far warranty created by word, 41 nature of, 43 peculiarity of, 43 objection to, 44 modern method of effecting, 44 Exclusive — case where possession not, 363 Execution — affidavit of — see Registry Act — " Affidavit of Execution " creditors in partition proceedings, 158, 162 of purchase deed, law as to, 27 powers, 60 Executor — adverse possession by, 458 deposit of title papers by, 520 of deceased trustee, 469 mortgagee, 120 may convey or assign, 120 INDEX. 675 Executor— of raortf^axQ may re'eaae or disoharfte, 120 ' under Devolution of Estates Act — powers of, 312 ExECQTOBY interests — disposable by deed, 37 * nature of, 87 Existence of fact — deposit of proof of, f>\l Express exceptions — or qualifications, 223, 2i3, 257 trusts — no enlargement by, 542 see " trusts " ExTiNOCisHMEST of title, 420 r. Falsification of pedijjree, 90 Father— descent to, 307, 331, 335, 337 Fee simple— fee tail— how may be limited, 19 et »eq. Fees of registrar for deposits, 519 under Registry Ac'.. — see lb. Feminine for masculine, 223, 243, 257 Fence — effect on covenants in lease, 247 erecting, is an act of ownership, 373 erroneous line of, 369 included in conveyances, 48 meaning of, 48 possession of, 357 («) Feoffment — by word, 17 writing, 17 , wrong, 18 included in " conveyance," 11 never common in Ontario, 17 to be by deed, 17 have no tortious operation, 17 Fieri /acia«— writs of, 603, 604 Fishery — right of, 483 {y} Flow of water — tee Watercourse Forced sale— as an estimate of value, 81 Foreclosure action— within Statute of Limitations, 355, 440 arrears of interesc in, 427 Foreign country — property situate in, 353 Foreigners, 298, 341 Forfeiture — effect on contingent remainder, 71 676 INDEX. FoRFEiiuBR — under Real Property Limitation Act— »ee lb, FoROED deed — Priority of, 591 Forms ander cap. 115, 521 BegiBtrj/ Act, 642 Fowling is a profit a prendre, 483 Fraud— concealed — under Beal Property Limitation Act — tee lb. Frauds on sales and mortgages, 9G et seq. concealment, 96 falsification, 96 civil damages for, 96 penalty for, 97 Fraudulent deed reiDiains fraudulent, 476 Free from incumbrances, 233, 263 Freehold — immediate, 14 in a pew, 14 Further assurances, 234, 263 proceedings — after notice of sale, 149 what are, 150 Future advances — mortgages for, 605 interests — disposable by deed, 37 * limitation of, 70 nature of, 37 ., see " Remainderman " f^ % Oardens — included in conveyances, 46 moaning of, 47 General residue — how administered, 289 "testamentary power," 288 " Give "—what implied in, 42 Gold Mine— how far included in " land," 2 Grandchildren and grandparents — descents to, 301 Grant — included in conveyance, 11 corporeal tenements to lie in, 14 and livery, 15 how far warranty implied by, 41, 42 bargain and sell," 43 Gravel Pit — possession of, 357 (a) Guabdian— possession by, 461 under Partition Act — tee lb. INDEX. 677 H. Habendum in lease, 242 Half-blood— descents to. 301, 333, 340 Happening of event— deposit of proof of, 517 Hedges— included in conveyances, 45 possession of; 357 (a) Heir— requisition as to rJfeht to convey. 505 Heirs— under Devolution of Estates Act, 316 and amgm—yxaAer Devolution of Estates Act, 315 "heirs of the body "-howfar necessary in limiting estates, 19 et seq. Hereditament— signification of, 5 classes of incorporeal, 6 corporeal to lie in grant, 14 lease of incorporeal, 34 under Real Property Limitation Act, 352 Highway— possession in soil of, 356, 357 (s) see " Dedication " Hotchpot, 295, 301, 342 Hodse— signification of, 3 included in conveyance, 45 meaning of, 46 Hdnting— whether a 2)ro«t a prendre, 483 Hcsband— possession of, 461 surrender by wife during imprisonment of, 37 (p) Husbands and wives -conveyances and gifts between, 23, 25 descents between, 296, .S03, HOi, 306, 307 I. Illegitimate children— descent to, 326, 341 Immediatb freehold, 14 Implied covenants— see " Covenant " Improvements in cases of unskilful survey, 85 acquiescence in boundary line, 88 assessment of damages, 87 costs in such cases, 85 evidence of, 88 measure of compensation for, 88 678 INDEX. Improvements in cases of unskilful survey order that may be made, 85 scope of sections as to, 86, 87 under mistake of title, 74 belief as to, 75 by purchaser at tax sale, 80, 84 decisions in Manitoba as to, 78 estimation of value, 81 evidence of surveyors as to, 80 interest on, 83 legislation as to, 74 made during litigation, 84 occupation rent on, 82 rule in Equity as to, 76 rules for compensation, 79, 80 what are, 80 (t) iNCOKPOREAii— see '• Hereditament " Inccmbranceb — meaifing of, 100 see " Mortgage " — " Creditor," etc. Inccmbranceb — meaning of, 100 payment into Court in discharge of, 55 requisition as to, 506 Index— see " Custody of Title Deeds Act "— " Registry Act " "In Ontario," 287 V Infant — disability of, 492 right of in partition, 180, 181, 182, 188, 211 under Devolution of Estates Act, 309 " Inheritance," 334 q Insolvency — registration ot ^/i^ccrdings in, 529 Inspector of registry offices — se*^ Refjistry Act Insorancb money — application of, to mortgage, 103 application towards reinstatement, 110 discharge, 110 consolidation by mortgagee, effect on. Ill right of mortgagee as to, 110 right to hold as collateral, 1 10 power of — under Lord Cranworth's Act, 137 under mortgages — see Short Forms of Mortgages — " Insur- ance " Instrument — see under Registry Act Interest in lands — meaning of, 7 arrears of — see under Real Property Limitation Act on improvements, 83 by mistaken owner, 83 INDEX. 679 Interest on improvements, by mortgagee, S3 (z) order as to payment of— between vendor and purchaser, 511 Interpretation, clause— R. S. O. 1887, c. 100; 1, et seq. c. 102 ; 99 c. 104 ; 155 c. 105; 221 c. 107; 255 c. 108 ; 285, 324, 334 o. Ill; 352 c. 115; 517 56 V. c. 21 ; 528 Interruption under Real Property Limitation Act— see 76. Intestacy under Devolution of Estates Act, 307 partial, 299 Invested- money subject to be, 7 • Investments— liability of agent for, 545 solicitor for, 472 Issues— trial of— in partition action, 190 J. Joint account— clause is mere conveyancing machinery, 127, 130 does not disclose trust, 128, 129 will Courts go behind, 130 mortgage on, 114, 115, 124, 126, 128 receipts of mortgagee, 124, 125 and separate claims, 115 and several covenants, 114 mortgagees— acknowledgment by one, 438 tenancy— nature of, 24, 125 in purchases, 126, 330 in mortgages, 126 tenants— in partition proceedings, 158, 159 possession of some against others, 411 when grantees deemed to be such, 330 wrongful possession by two persons makes them, 418 Jointly with another— conveyance to a man, 24 Judgment— alimony, 568, 575 interest on, 429 partition, 194, 200, 205 period of limitation as to, 441 registration of, 529, 568 680 INDEX. JoBisoiCTioN of Court in partition, 156, 164, 177 to amend plans, 615, 618 order plans, 621 Kbt— giving op— as evidence, 27 (p) W ^' n !. T- Laches under Real Property Limitation Act — He lb. Land — definition and meanings of — under cap. 100 ; 2, 99 cap. 102 ; 99 cap. 104 ; 155 cap. 105 ; 221 cap. 107 ; 255 cap. 108 ; 324 cap. Ill; 352 56 V. c. 21 ; 520, 532 tenure of— in Ontario, 5 Titles Act — no possessory title against, 425 Landlord and tenant — «6e" Leases" Lateral support — right to, 485 Law — surrender by operation of, 36 Leases — assignments of, 35 valid as security for costs, 35 by mortgagees, 262 how a£fectod by Statute of Frauds, 32 included in "conveyance," 11 jurisdiction of County Courts in, 31 of incorporeal hereditaments, 34 registration of— see Registry Act required by law to be in writing. 30 requisition as to proper granting of, 508 when must be by deed, 29 within Real Property Limitation Act— je<; lb, see " Short Forms of Leases" Leasb and release, 15 Lbaskholds— conveyance of, 58 mortgages of, 113 conveyance by executors, 121 m INDEX. 681 Legacies— sufficiency of receipts for, 507 within Real Property Limitation Kct—see lb. Legal representatives— » taxation of, 143, 151 vexatious — by sale proceedings, 149 covenants implied in mortgage, HI, 113 by beneficial owner, 112 danger of using, 112 joint and several, 114 dates— 1st day of July, 1886 ; 108,115 discharge of mortgage — by executors, 120, 122 valid whenever given, 122 effect of, 123 distress — mortgagee's right of — limited to goods of mortgagor, 130 to year's interest, 131 ill 684 INDEX. V j^fM I MosiaAOES of real estate— distress and attornment, 131 form of clause, 135 executors of mortgagee— power of dealing with mortgage, 120 further proceedings — after notice of sale, 149 what are, 150 incumbrance — meaning of, 100 incumbrancer — meaning of, 100 insurance — money payable under mortgage, 108 application of, 108 held as collateral. 111 not affected by consolidation, 111 rights of mortgagee to, 110, HI power of — under Lord C ran worth's Act, 137 interpretation, 99 joint account clause, 124 will courts go behind, 130 and several covenants, 114 tenancy, 126 in assurances, 126 in mortgages, 126 land — definition of, 99 leasehold — mortgage of— assignment of, 121 implied covenants, 113 merger of securities, 115 comparison of our law with that of England, 116 effect of release of equity, 115, 116 purchase from sheriff by mort- gagee, 115, 117 extent to which general doctrine affected 117 general rule as to, 118 how long mortgage debt kept alive, 117 rights of incumbrancers inter se, 115 mortgage — account — proved by oath of assignee, 118 assignment of— by executor. 120, 121 bequest of indebtedness on, 121 covenants implied in. 111, 112 discharge by executor, 120, 122 ij INDEX. 685 MoRToioEs Of real estate-mortgage, joint and several-implied cove- nants, IIB meaning of, 100 money— meaning of, 100 of leaseholds-implied covenants, 113 sale of— by executor, 121 mortgagee-executors of— power of dealing with mortgage, 120 in possession, 100, 107 meaning of, 100 more than one— covenants with, 114 receipt of. a discharge, 125 rights of distress, 130 et seq. mortgagor— entitled to redeem, 101 meaning of, 100 rights to inspect title deeds, 107 notice of sale under power, 138 contents of, 138 in case of infants, „ _ 139 form of, 139 registration of, 140 stays proceedings, 149 payment in terms of, 151 order for assignment in lieu of re-conveyance, 107 partnership— mortgage to, 114 payment after default, 144 how far notice necessary, 144, 146 power of sale— amendments to statutory, 146, 147 application of purchase money 141 costs of exercising, 143, 151 form of notice of sale under, 139 improper sale under, 139 notice before sale under, 138 effect of, 149 payment in terms- of, 151 receipts for purchase money, 138 registration of notice under, 140 restriction on statutory, 143 time for questioning sale under,, 148 686 INDEX. W 'I MoRTOAOESof real estate — power of aale under Lord Cranworth s Act, 136 power to insure, under Lord Cranworth'n Act, 137 purchase money, from sale under power, 141 application of, 141 purchaser of mortgage may set up defence of value without notice, 152 except as against mortgagor, lo3 under power of sale, 139 conveyance to, 141 how Affected by im- proper sale, 139 receipt of mortgage— an effectual discharge, 125 selling under power, 138 re-conveyance — assignment in lieu of, 100, 102 sale under power — see " Power of Sale " time for questioning limited, 148 " terms, on the," meanin;; of, 105 title deeds — right of mortgagor to inspect, 107 right to, of person exexcising power of sale, 142 MoRTOAOOR— definition of, 8, 100 personal representative of, 323 power to inspect title deeds, 107 former rule, 107 under Real Property Limitation Act — see Ih. where entitled to redeem, 101 Mother — descents to, 307, 335 Motion under Rule 989 ; 109, 173, 174 Mounds — included in conveyances, 45 N. " Name or names," 242 Natore of interests acquired under Statute of Limitatioi^s, 421 barred, 421 Nephew and niece — descent to, 300 Next of kin, meaning of bequest to, 507 succession by, 295 " No Act to incumber," 236, 264 Nominal damages, 228 NoN compos m«ntt«— disability of, 492 NoN-existing grant— sec " Easement " — " Prescription" INDEX. 687 Notarial copies— registration of, 570 * Notice —actual — see Registry Act constructive, 502 in Gazette under Partition Act, 188 of application to remove deposit, 520 deposit, 518 form of, 523 sale, etc., 138 certified copy of, 140 deposit of, 517 form of, 139 payment in terms of, 151 must be accepted, 151 taxation of costs, 151 power without, 147 registration of, 140, 654 stay of proceedings after, 149 during time mentioned in notice, 149 unless order of Court, 149 form of order, 149 proof required for order, 149 of sale under Partition Act, 204 to quit, in cases of leases not by deed, 34 " Notwithstanding any Act," 230 0. Odstruction to user, 489 Occupation rent, 82 Office — registry — gee Registry Act Official guardian— duties of, 309, 310, 317 ' service on, 181 Operation of law— surrender by, 36 Orchards — included in conveyances, 45, 47 Order- for assignment of mortgage in lieu of re-conveyance, 107 removal of deposit, 520, 521 delivery under, 521 registry of, 521 registration of, 568 under Partition Act— «ce Ih. Vendor and Purchaser Act, 510 where not complied with, 511 cases conflict, 511 688 INDEX. OBDINiRIEB, 294, 297 OcsTER of jariadiction to partition, 177 OcTHOusES — included in conveyance, 46, 46 meaning of, 46 OwNEBSHiP— «6, 178 trustees for sale as parties under, 169 unclaimed moneys, 211 et seq. unknown parties, 187 vesting order, 199 writ of summons — proceedings by 169 Partition — by deed, 29 ^ . at common law, 29 Partnership — mortgage to, 114 Party — meaning of, 221, 2r)5 necessary, to vendor and purchaser application, "JO'.) person, not a, how far bound by order, 512 to partition, 158, 179, 180, 214 Patent— 8^e " Crown Grant " Payment of debts— trust for, 453 purchase money, to whom, 28 into Court in discharge of incumbrances, 55 partition proceedings, 262 mistaken, to tenant for life, 64 certificate of — sen Discharge of Mortgage under Real Property Limitation Act — *t'. under lease, 241 (/i), 244 out of Court — in partition actions, to creditors, 202 Pedal possession — meaning of, 362 Pedigree— deposit of proof of, 517 falsification of, 96 Penalty for fraud on sales, etc., 97 unauthorized entries in registry books, 594 INDEX. 691 Per capita, 335 stirjjes, 335 Perception— see "Wrongful Perception " Permission— effect of, in cases of prescriptive claims, 47'J etseq. Person- meaning of, in Statute of Limitation, 354 " last entitled to land," 324 " through whom ancestor," etc., 324 Personal covenant, 259, 2G0 property, included in " Property," 9 under Devolution of Estates Act, 291, 292 representative, 289, 291, 29.5, 298, 312, 315 powers of, 312, 317 Petition— see Partition Act Petitioner— see Partition Act Pew— purchase of, 14 freehold in, 14 ' PLANs-see Registry Act "Pl.untiff"— meaning of, in Partition Act, 1.55 Pleading— prescription, 490, 491 * Statute of Limitations, 425 • under Partition Act, 190 Pollution of water— prescriptive right to. 486 Possession— of land under memorial signed by grantee, 503 under Real Property Limitation Act— .se,,' /?>. PossiriLiTiEs — bare, 38 coupled with an interest, 38 meaning of, 38 Posthumous children, 301, 341 Power— contract not to exercise, (U coupled with an interest, (il a duty, (')2 disclaimer of, 02 distinguished from " property, " 10 not avoided by mistaken payment, 04 notice of exercising— deposit of, 517 of sale under mortgage, 130 affidavit for registration, 140 • application of purchase money, 141 application ot Lord Cranworth's Act, 143 amendments to same, 144, 140, 147 certified copy of notice, etc., 140 3:J 692 INDEX. Power — of sale under mortgage — Continued. conveyance to purchaser, 141 costs of proceedings, 143 deposit of notice of exercising, 517 effect of improper sale, 139 form of notice, 139 notice before sale, 138 to executors, 139 • to infants, 139 receipts for purchase money, 138 registration of notice, 140 requisition as to exercise of, 50() right to title deeds, 142 time for questioning sales, 148 under Lord Cranworth's Act, 13f> amended, 137 • under Short Forms of Mortgages Act— nee lb, provision as to execution and attestation of, CO release of, 61 simply collateral, CI to insure under Lord Cranworth's Act, 137 under Devolution of Estates Act, 288 PuEscBiPTiox — see Real Property Limitation Act " PuESENT right to receive," 444 PuKSUMPTioN from less than period of prescription, 491 Phivate Act — words oi— including Statute of Limitations, 498 PuiviTY of title between successive trespassers, 359 PuiviLEOEs — included in conveyances, 45 what are, 49 Profits ,) prendre — included in conveyances, 45 ■ . what are, 49 under Real Property Limitation A.ct—sre V>. receipt of, 420 Prohiiutio.v in proceedings for petition, 1C5 Pr.oPEUTv — Act respecting Law and Transfer of, 1 acquiescence in purchase of reversion, 9'2 annuity — release of portion of, C8 apportionment of rent charge or annuity, ()8 appurtenances, can land be appurtenant tc land, 51 danger of express mention of, 49(2) m INDEX. 693 Pkoperty— Act respecting Law and Transfer of— Continued. appurtenances, included in conveyance, 45 " used or enjoyed with, " 50 ascertained — object, 39 assignment of chattel interests. 35 executory interests, etc., 39 at common law, 39 lease as security for costs, 35 attestation of deed, 27 execution of power, 60 auctioneer— definition of, 65 liability of, 67 auctions of estates, 65 reserved sales, 65 bargain and sale— by deed poll, 54 corporations can convey by 51 enrolment of, 55 origin of, 15 registry of, 54 barns and stables, 46 " beneficial owner," 58, 59 form of conveyance by, 98 building— meaning of, 46 chose in action, 10 commodities— pass under conveyance, 45, 50 commons— included in conveyance, 45, 47 contingent interest— deed of, 37 remainders not defeated by certain events, 71 trustees to preserve, 71^ uses take effect without .scintilla juris, 70 convey, 11, 13 " conveyance," 11 by deed, 11 ordinary sense, 11 by bargain and sale, 15 by lease and release, 15 by person to himself, 23 by husband to wife, 23, 25 by wife to husband, 23, 25 what included in, 45 by beneficial owner— form of, 98 J 694 INDEX. m m 5i! • PnoPEnxY — Act respecting Law and Transfer of — Continued. corporation — bargain and sale by, 51 corporeal tenements to lie in grant, 14 county courts — jurisdiction, 31 covenant by man with himself, 26 definition of, 41 implied in conveyance by beneficia' owner, 57 in conveyance by owner of leaseholds, 58 in conveyance by trustee, HB runs with land, 59 variation of, 59 what — created by certain words, 41 when not implied, 59 dates-6th March, 1834 ; 52. 53 30th May, 1849 ; 71, 74 1st January, 1850 ; 45, 46 2nd August, 1851 ; 71, 74 4th March, 1868; 68 2nd March, 1877; 71,74 . 1st July, 1886 ; 23,45,57 debt, 10 * deed — " execute and deliver," 12 " forward a," 12 in possession of solicitor— effect of, 'JH meaning and requisites of, 12 ' necessary to assignment, 29 certain leases, 29 exchange, 29 feoffment, 17 - ' '' ' partition, 29 surrender, 29 ' of contingent interest, 37 executory interest, 37 future interest, 37 possibility, 37 poll, 54 receipt in body of, 26 right to have witness present, 27 sealing— how done, 12 (note) delay — see Acquiescence " disposed of," 40 disposition, 41 ditch — passes under conveyauce, 48 INDEX. 695 Property— Act respecting Law aud Transfer ot— Continued. dwelling— meaning of— 46 easements- included in conveyance, 45, 49 edifices— included in conveyance, 45, 46 emoluments— included in conveyance, 45, oO enrolment of bargain and sale, 52 entry— right of, 40 assignment of, 37, 40 " estate "—meaning of, 6 provision for all the, 19 exchange— covenant created by, 41, 43 disuse of, 44 must be by deed, 29 peculiarities of, 43 execution of deed— rights as to, 27 executory interest— deed of, 37 fence— meaning of, 48 passing under conveyance, 45 feoffment— to have no tortious operation, 17 void unless by deed, 17 forfeiture— effect on contingent estate, 78 frauds on sales aud mortgages, 96 concealment of instruments, 96 falsification of pedigree, 96 civil liability, 96 penalty, 97 solicitor or agent, 96, 97 measure of damages, 96 future interest— deed of, 37 gardens— included in conveyance, 45, 47 gold mine— how far included in " land " 2 gi-ant and livery, 15 what covenant implied in word, 41 " hereditaments "—corporeal, 14 incorporeal, 6 meaning of, 4 " house "—meaning of , 3, 46 improvements under mistake of title, 74 lien for, 74 extent of relief, 77 equity rule, 77 rules for estimating compensation, 79 occupation rent, 82 interest on improved value, 83 by purchaser at tax sale, 84 696 INDEX. V PnoPEBTY -Act respecting Law and Transfer oi— Continued. improvementa made pending litigation, 84 under mistaken survey, 85 evidence of, 88 measure of compensation, 88 estoppel, 88 incumbrances — sales free from, 55 interest in land, 7 interpretation, 1 joint tenancy, 24 nature of, 24 land— meaning of, 2, 3 what passes with, 3 lease and release— origin of, 15 required by law to be in writing, 29, ;50 of incorporeal hereditament, 34 leasehold — covenant implied in conveyance of, oH liberties — pass under conveyance, 45, 49 " with all," 49 ii{, 4wa — pusa under conveyance, 45 ' with all its," 49 limitation — words of — unnecessary, 19 inappropriate words of, 19 words of — in a will, 20 deed, 20 effect where no words, 20 livery of seisin, 15 merger — effect of — on contingent estate, 71, 73 " messuages " — meaning of, 3 " mill " — what included in, 46 mines — included by " land," 2 mistaken payment to tenant for life, 04 " money subject to be invested," 7 "mortgage" — meaning of, 2, 8 distinguished from purchase, 8 orchards — included in conveyances, 45, 47 outhouses, meaning of, 46 partition at common law, 29 must be by deed, 29 payment into court — on sale free from incumbrance, 55 possibilities, 37, 38 powers — contract not to exercise, 61 disclaimer of, 62 "BH^nRMBninimiPVPMi ■r INDEX. G97 PjioPEKTY— Aot respecting Law and Transfer ot— Continued. powers— exercise of— not to be avoided by mis- taken payment, 64 former rules as to, 60, 01 may be released, 61 mode of execution of, 60 privileges— pass under conveyance, 15 what are, 49 profits a 7>r<;mi;-e— definition of, 4!) pass under conveyance, 45 " property "—distinguished from power, 10 mcauinfi of, <», U puffers — definition of, (io employment of, 65, 67 " purchase "—by vendor, 67 deed — execution of, 27 for value— ,s('t' Purchaser meaning of, 13 of pew, 14 of reversion— see Reversion " purchaser"— for value without notice, 0 iicquiesccnco distinKuisliod from ladies, 478 equitfthlo, 470, 477 in interruption of tenn.ncy at will, .'50!) in interruption of easement, etc., 488, 481) mere receipt of portion of ilaim is not, 478 8if,'nification of, 477 nilminiatration— claims from death, 408 old rule, 408 action— right of-period of ten years from accrual of, .354 accrual of, ■]:>'} as to waste lands of Crown, 382 in case of wrongful i)erception of rents, H<)'2 case of forfeiture, 404 future estates, 40.'> administrator, 408 acknowledgment, 415 arrears, 42 > mortgagee in possession, 481 out of possession, 4.'t8 foreclosure, 440 covemmt, 440 I' tenancies from year to year, ;^!»r> at will, HUn on dispossession, '.iof, abatement or death, 381 alienation, 382 adverse possession-liow doctrine affected by 3 A 4 Wm. IV., :m by person in fiduciary position, 401 agent— s^e " caretaker " alienation— when right accrues in cases of, 382 annuities— arrears of, 420 arrears of dower— limitation for, 425 former limitations, 425 rent or interest, 425 annuities, 420 exception in favor of subsequon incumbrances, 430 interest on judgment, 429 legacies. 427 money paid into court, 428 money secured by ven- dor's lien, 42,) mortgages, 427, 428 •if 702 lyniix. Real ProjiKirty Limitation Act — Continued. arrears of dower— rent or iiiteroat — money payable ont of laud, peraon by whom payable, 130 what rents included, <12(i aflsurnnce— meftning of, i\^>:\ attorney — nee " caretaker " -" Holicitor " bailiff — poBBeHsion by — nee "caretaker " base fee— poHaossion In caao of, 'l')? boundaries — tlieir 8i({nilicanco in relation to statute, 'M'll will erroneous boundary be extended ? Ufis mutual error in, 8(iH {a) breach of condition— nee forfeiture brother— younger — meanint; of, IM poflsession of, 114, 41.') caretaker— employment of — for property an act of ownersliip, 373 rule against adverse possession of, 4(11 how regarded under Statute of Liniitations, 4n2 what constitutes occupation as, 4(\^, 4(54 parol evidence of occupation as, 4ti4 distinj^uiahed from tenant at will, 4(15 how — may divest himself of caretakership, 40(1 occupant by wronj^ \h not, 4G0 summary as to, 4(17 cellar — possession of, H57 («) centui que trust— adverse posaesaion by, 4G7 in poaaesaion, 38'2. 404 not a tenant at will, 403 position of — may be presumed, 404 rif^hts of stranger af^ainst, 470 charities — effect of section 30 on, 470 limitations as to, 354 notice of express trust in favor of, 470 claim — see " continual claim " commencement of Act, 353 constructive possession — see possession continual claim — definition of, 410 effect of, 409 co-parcener — possession of one, 411 court — money paid into — arrears of interest, 428 covenant — action on, 440 coverture as a disability, 495 Crown— extent of rule excepting, 384 how far — may set up Statute of Limitations, 383 ip i; /xnjix. TO.S Real Property Limitation Xct—Continued. Crown— liow affected by prescription, 408 landa or timber limitH— lease or license of, .'(ii'i locatees of-iasue of patents to niortna«or or inort«a«ce, 462 must divest itself of fee before Statute can run. Mr, Nnlluin Tempus Act, 385 nature of claim under Nullum Tempus Act, 385 to what cases Act applies, 385 Act does not apply to waste lands, 385 not barred by Statute, 384 oven though a trustee, 384, 40!) patentee of not considered as disseised, 388 protected even thouyh ignorant of his own^rHliin 388 actuiil possession by, 389 waste lanls of, 387 what limitations as aj^ainst, 385 wild lands granted by, 382 customs— none in Ontario, (81 datea—lst July, 1877 ; 353 21.stDec., 1871; 353 death—rif^ht accrues at time of death, n-ll deed— occupant under can't set up Statute, 3<)7 depredations are not acts of ownership, 375 • descent cast— meaning of, 410 not to defeat riglit of entry, 410 devise — see Legacy disabilities in cases of prescription, 4!)2 infant, 402 idiot, 402 ■ i"»i contpoH mentis, i\\2 tenant for life, 402 former rule as to, 408 land or rent, 494 mortgage cases, 405 infancy, 405 coverture, 405 absence beyond seas, 10(» succession of, 497 utmost allowance for, 496 discontinuance of possession, 376 distinguished from dispossession, 377 essentials of, 377 lack of actual possession is not, 377 i| 704 INDEX. A i Real Property Limitation Act — Continued. discontinuance of actual possession, 380 of constructive possession, 379 how evidenced, 379 of estates does not defeat right of entry, 410 meaning of, 410 dispossession, 370 after — statute runs until dispossessed owner restored, 381 distinguished from discontinuance, 377 evidence of — should be unequivocal, 381 no — of undivided moiety, 381 distress— none but within ten years, 354 right to — not preserved by claim, 409 see " action — right of " ditch — possession of, 357 (n) dower — action for— within tei years, 454 computation of time, 4")4 arrears of — see " arrears " agreement in lieu of, 455 pleading the statute in cases of, 455 possession of dowress, 455 widow's right to— formerly, 454 draft deed as evidence, 419 " due diligence," 475 easement — defined, 482 distinguished from profit, 182 how barred by Limitation Act, 481 novel, 483 of way, 484 " or other easement," 485 prescription of, 480 right to lateral support of building, 485 enlargement of period by express trusts, 4£2 entry — by owner on a portion of his land , 409 cases as to sufficient entry, 409 elements of a proper, 409 mere — not to be deemed possession, 409 right of — not preserved by continual claim, 400 right of — not tolled in certain ways, 410 subsequent — by person barred, 420 equity of redemption included in land, 352 estates tail— bar of, 456 see " remainderman " INDEX. 705 Real Property Limitation ii.ct— Continued. estoppel by consent to a conveyance, 419 mortgage, 419 draft deed, 419 exceptions and disabilities, 492 exclusive — where possession not, 363 executor— adverse possession by, 4G8 of deceased trustee, i69 express trusts— period not to be enlarged by, 542 extinguishment of title, 420 father— possession of— how construed, 415, 461 fence— erecting— an act of ownership, 373 erroneous line of, 368 foreclosure action within statute, 355, 440 foreign country— property situate in, 353 forfeiture or breach of condition— meaning of, 404 under a lease, 405 when advantage not taken of, 404 when right accrues, 404 fraud— concoaled, 473 does not affect bona fide purchasers without notice, 476 due diligence in discovering, 475 examples of, 475 proof of, 475 what must be shewn, 473 constitutes, 473, 474 fraudulent deed remains fraudulent, 476 future estates — «ee remainderman gravel pit— possession of, 357 (») guardian— possession by, 461 hedge— possession of, 357 (s) hereditaments — corporeal or incorporeal, 332 highway— possession in soil of, 356 husband— possession of, 461 incumbrancer — see mortgagee infant— disability of, 492 interest — arrears of — see " arrears " interpretation clause, 352 interruption after twenty years' enjoyment, 489 by whom, 489 evidence of, 489 of currency of statute by writ, 354 tenancy at will, 398 et seq. prescriptive right, 488 H.R.P.8.— 45 706 INDEX. Keal Property Limitation Act — Continued. interrnption— submission or acquiescence in, 48!) investments — liability of solicitor for, 472 joint mortgagees -acknowledgment by one, 438 tenants, possession of some against others, 411 wrongful possession by two persons makes them, 113 judgment — interest on, 429 period of limitation as to, 411 laches — circumstances to be looked at in considering, 479 distinguished from acquiesence, 478 rule as to, 478 land — in a state of nature — see wild lands meaning of, 352 Titles Act — how possession dealt witli, 42:) lateral support — right to — 485 lease — at will — sec " tenant at will " from year to year — see " year " may be sufficient alienation within section I'.O ; 470 where rent amounts to §4.00 per year— sec wrongful perception legacies — arrears of interest on, 427 former rule as to, 443 how far within section 23 ; 438, 442 not charged on land, 443 not revived by charge of debts, 443 present right to receive, 443 residues and shares of, 443 time whence interest runs, 427 light — prescription of — abolished, 487 limitation distinguished from prescription, S'p'J local improvements — charge for, 442 marketable title— is statutory title such, 421 messuages — included in land, 352 mine — possession of part for whole, 357 (c) adjoining, 357 (•>!) minerals — possession and acquisition of, 3"(7 (•-) " money payable out of land," 420, 442 mortgage — arrears of interest on, 427, 428 " claiming under a" — meaning of, 440 equity of redemption indivisible, 437 what is a — within statute, 432 when deemed satisfied, 438, 411 without redemise, 444, 445 see " payment " — " acknowledgment " M INDEX. 707 Beal Property Limitation A.ct~Continued. mortgagee-entitled to what arrears of interest, etc.-see " arrears " in possession -rights of subsequent incumbrancer 430 judgment creditor, 431 when mortgagor barred, 431 possession must be lield una mort- gagee, 432 solicitor of mortgagor as, 433 right of assigns of, 433 acknowledgment by, 435 to third person, 43G accounts kept by, 43(j when more than one, 437 how affected by administration suit, 43o purchase by— not within exception, 469 purchase from— under power, 435 right of entry of, 133, 438 mortgagor-acknowledement by— sa? " acknowledgment" acknowledgments to, 435, 137 effect of insolvency of, 451 not to be deemed a tenant at will, 403 payment by -.see " payment " possession by, 4 SS* 439 riglit of entry of, 433 solicitor of— taking assignment, 433 • ' nature of interests acquired under statute, 421 burred, 421 nun compos wcnft'i*— disability of, 492 ownership— see " Possession "—" Occupiuicy " acts of, 373 payment by mortgagor, 438 by whom made, 445 after assignment of equity, 447 ■ tenant for life of equity, 447 fffect of one joint owner of equity paying, 447 ngent to pay interest, 448 distinction between sections 22 and 23 ; ; 44(i distinguished from acknowledgment' 449 to mortgagee -by solicitor of prior mortgagee, 448 tliird person in pos^osdon, 44S 708 INDEX. ■i i I . - 4 Real Property Limitation Act — Continued. pedal possession — meaning of, 3G2 perception — meaning of, 394 (t) see " wrongful perception " " person " — meaning of, Sol pleading Statute of Limitations, 425 in cases of prescription, 490 old practice, 490 enjoyment as of right, 491 present rules as to, 491 matter of law, 491 possession — see also " occupation " must be such as property is capable of, 35t! different kinds of, 350, 357 (») different views of judges respecting, 357 barring title, 358 giving title, 358 privity of title between successive occupiers, 359 ^ clcimed by what classes of persons, 360 (1) rightful owner, 360 (2) owner under defective title, 31)0 (3) squatter, 360 doctrine of constructive, 300 by vendor against vendee, 361 trespasser confined to pedal, 362 where not exchisive, 303 payment of taxes as evidence of, 365 under deed or will, 367 onus of proving, 367 costs of proving, 367 of wild lands, 369 pedal possession of, 369 discontinuance ot—nee discontinuance actual— by patentee, 389 of mortgagor or cestui que trust, 403 " out of," 408 ot co-owners, 411 wrongful — creates a joint tenancy, 413 mortgagee in — sei: " mortgagee " prescription computation of terms of, 488 disabilities and exceptions, 492 effect of interruption on, 488 in case ot profits, 479 easements, 480 nature of claim bv, 481 INDEX. 709 Real Property Limitation Act— Continued. prescription of Crown lands, 493 of li^ht abolished, 487 of soil under river, 494 of wild lands, 494 proof of, 484 title by— distinguished from bar under Limitation Act, 480 " present right to receive," 444 presumption from less than statutory period, 491 private Act— words of— excluding Statute of Limitations, 498 privity of title between successive trespassers, 359 profit renrfre— distinguished from easement, 482 how claim to— may be defeated, 484 instances of, 483 period of enjoyment of, 483 prescription in case of, 479 proof of enjoyment of, 484 profits — what is receipt of, 420 purchase by trustee, mortgagee, etc., 469 purchaser without notice of fraud, 476 Quieting Titles Act— proceeding under, 355 railway company— possession of land of, 357 («) receipt— of rent is receipt of profits, 420 wrongful— «tfe " wrongful perception " redemption action— within statute, 355 relations— possession of— not to be deemed possession of heirs, 414 widow, 414 father, 415 younger brother, 415 remainderman— limitations against, 405, 456 where tenant for life in possession, 405 statute runs from death of tenant for lifo, 405 tenant in tail, 406 equitable, 40(5 when statute running in testator's lifetime, 407 where tenant for life out of possession, 407 where person's estate in possession barred- same person barred as, 407 " out of possession," different riglits of— where tenant in tail aban- dons, etc., 4')C> under disabilities, 456, 492 710 INDEX. 4 I Bbal Property Limitation Act — Continued. remainderman — how affected by prescription, 41)2 rent — arrears of — see " arrears " meaning of, 853 in section 5 (5) ; 392 no action or distress for — after ten years, 354 receipt of~to be deemed receipt of profits, 420 wrongful perception of — see" wrongful " resident out of Province, 353 reversion — " entitled to any," 493 reversioner — see remainderman right of action — see action person claiming, 480, 487 road — possession of, 356, 357 (s) servant — rule a^'ainst adverse possession by, 461 see " caretaker " solicitor — liability tor investments, 472 squatters — coniineil to their pedal possession, 362 definition of, 360 rule for coiistt'uinc{ statute against, 361 submission — see •' nciiuiescenco " successive tresi)as3ers in privity, 423 independent, 423 taxes — payment of — as evidence of ownership, 305 sale for — when time runs, 367 tenancy at will — limitation as to, 390 change affected by section, 390 doctrine of adverse possession, 390 nature of, 397 statute not construed in favor of tenant, 398 interruption of — statute runs from creation of new tenancy, 398 effect of consent to remain as tenant, agreement for new — created by implication, 39'J interruption of — by acquieseuce, 399 requisites for agreement creating new, 400 determination of, 400, 401 • or tenancy for life, 402 possession of brother under, 402 occupation of mortgagor or cestui que trust not to be deemed, 403 for years — prescription in case of, 492 from year to year — see " year " tenant for life — see remainderman in tail — see remainderman INDEX. 711 Real Property Limitation Xct— Continued. tenants in common, possession of some against others, 411 old law as to, 411 commencement of operation of statute, 412 distinguished from trespassers, 412 adult and infant, 413 out of pos898sion acquiring interests of those in possession, 413 paj-menta by some to others, 414 lia'oiiity inter se, 414 timber— cutting— an act of ownership, 373 title — extinguished by statute, 420 is statutory — marketable ? 424 lenf{th of— to be shewn, 424, 497 possession with perfect, 360 imperfect, 360 .10, 360 tolled — meaning of, 410 right of entry not, 410 trespasser, 360 in privity with others, 423 independent of others, 423 mere, 360— .see " squatter" trusts — enlargement by express, 452 express— as to portion of property, 460 in acting trusts, 460 for sale — treated as mortgage, 460 for sale and payment of debts, 4.33 must be express — not constructive, 458 of legacies, 459 rule as to limitations in cases of, 458 old equity rule, 458 present rule, 459 trustee — see " caretaker " ^ actions against, 471 exceptions to 54 V. c. 19 ; 472 liability of, 471 purchase by, 469 rule against adverse possession by, 461 " use of any water," 480, 486 user by tenant over landlord's property, 487 caunot give title against some unless against all, 486 vendor— arrears of interest on lien of, 429 lien of —within section 23 ; 442 no constructive possession against vendee, 361 Li' > 712 INDEX. * •; Keai, Property Limitation Act — Continued. wall— possession of, 357 (») by building, 357 (s) warranty — meaning of, 410 not to defeat right of entry, 410 water— easement of, 480. 486 watercourse — easement in respect to, 480 meaning of, 486 way — easement of, 484 widow — occupation of — to exclusion of lieirs, 414 wife — possession of — following that of husband, 359 (it- wild lauds — possession of, 3G9 constructive possession of, SCO (») difficulties in treating, 8(/J occupation of portion by squatter, 371 test of possession of more than actually occupied, 372 acts of ownership over — to be open and tontinudus, 372 what constitute acts of ownership over, oTS granted by Crown — provisions as to, 382 see Crown will — occupant under cannot set up statute, 367 wrongful perception of rent, 393 where annual rent amounts to $4.00; 31)2 meaning of " rent," 392 time when right accrues, 393 old law as to, 393 where tenant sets up adverse title, 393 by executor or agent, 39;) different from mere neglect to receive, 394 effect of encroachments by tenant, 394 case of lease void ah initio, 395 receipt — see " wrongful perception " " wrongfully claiming," 392 year to year — tenancy — limitation in case of, 395 what is, 395 " without any lease in writing, I!'.I5 payment after statutory period by tenant, 396 further cases on, 396 Real Representative— under Devolution of Estates Act, 282 under Partition Act, 157 .11 INDEX. 713 Keceipt in body of deed sufficient, 2G former rule in Equity, 26 what constitutes, 27 how far evidence of valuable consideration, 586 effect of — in mortgage, 27 for deposit, 518 for rent — liow far evidence of tenancy, 36 of mortgagee on joint account, 125 of niortf^agee sufficient discharge, 125, 138 of rent is receipt of profits, 420 registration of, 524 requisition as to sufficiency of, 507 nee " Discharge wrongful— see " wrongful perception " Recitals— .'JCd Vendor and Purchaser Act Reconvkyance— assignment of mortgage in lieu of, 101 et seq. Rectification of instrument— equitable right to, 600 Reuemi'tio.v— proviso for, 258 various rights of, 101 Action— within Statute of Limitations, 355 Re-entry — proviso for, 250 ct seq, Referexces— under Partition Act— «ee lb. REoisTRAU-sfc Registry Act— Custody of Title Deeds Act Registration— see Registry Act Reoistky Act, 1893 ; 528 abstract clerk in Toronto, 535 index, 559 consideration money should be entered in, 559 form of, 644 right of public to inspect, 659 search for, 559 to subdivisions of townships, G13 abstracts of title in Toronto registry offices, 535 administration— rpgistration of grant of, 529, 530 advances— mortgages for future, (105 "affecting land in Ontario," 529, 531 aifidavit of execution, 562 affirmation in lieu of, 567 before whom to be sworn, 564 certificate of county Judge in lieu of, 647 defects in, 564 form of, 56a, 646 in case of several witnesses, 563 lien notes, 563, 646 \ III ! i: I,- 714 INDEX. Beoisthv kct— Continued, affidavit of execution, name of witness need not be set fortli, SfH not required where corporate seal, S67 parties not to take, 5(>7 requirements of, 5G2 to be regiatered, 5(53 where witness insane, etc., 5G7 witness compellable to make, 505 witness to sign, 5G7 agreement for sale or purchase— ref^istration of, 528, 530 alphabetical index, 560 effect of omission in, 560 form of, 615 assignment of mortgage may be registered, 528 priority of, 529 assurance — registration of, 528 bankruptcy — registration of proceedings in, 529, 531 bond — registration of, 528, 530 books — division of — between Toronto offices, 53i duty of treasurer to provide, 554 in case treasurer neglects to provide, 555 form of certificate, 643 new — to be furnished when required, 555 when old ones unfit for use, 558 repair of, 558 that go with new registry office, 534, 556, 557 penalty on registrar refusing to deliver, 557 to be certified by whom, 556 to be delivered up by registrar on his removal, etc., 557 proceedings in case of refusal, 557 to be the property of Her Majesty, 555 by-law — registration of, 529, 583, 584 certificate — see "discharge" — " lis pendens " cloud on title — registration of, 531 commission — agreements for sale on, 590 not to bind land after onu year, 590 consideration — subsequent purchase must be for, 584, 585 receipt in deed as evidence of, 586 consolidation an occult equity, 603 not abolished, 603 conveyance—registration of, 528 INDEX. 715 Reoistky Act — Continued. county council— duty to provide buildings, 586 how duty enforced, 536 what included in, 529 covenants of registrars, 537 copies of— may be obtained, 538 form of, 637, 642 how far munioipalitieg secured by, 5.J7 Lieut.-Gov. may require new, -'ydH new— may be required, 638 wliere filed, 537 Crown grant— may be registered, 528, 529 liow registered, 673 evidence of, 573 Registry Act does not apply until, 585 list to be furnished to registrars, (i21 dates— Ist January, 1860 ; 375 4th March, 1808; 614,023 29th March, 1873; <)23 deed— registration of, 528 description— when improper— will prevent registration, 533 whether it must be particular, 532 discharge— of lien note, 583, 049 attesting clause to, 583 of mortgage— may be registered, 528 how registered, o7(j nature of, 577 form of, 048 no necessity to go behind, 577 where — operates us a conveyance, 57n when paid out of new loan, 57!) by married woman, 581 by sheriff, 582, 048 registration of, 528 divisions— registry, 533 books that go with, 534 establishment of, 533 in Toionto, 534 list of, 050 duplicate instruments. 671 P 716 lyDEX. 1"' ■■■; ,' ,'■ Beoihtby Act — Continued. easement implied in ^rant, 000 endorRenients to bo made on duplicate ori^^inals, S71 entries in indexes and corrections, ')',)i penalty for unaiitliorized, r^'Ji eiiuitable mort^afje by deposit, 601 (/) equities- -occult, ()03 unrof^istorod, 596, 5i)9, 600 execution— dec affidavit fees of registrars, 62'1 for deposits of title deeds, 519, 621 rc({isterin)^ discliiir({e of morttjn^e, 632 lien. 633 letters of administration, 575 mortgat^e not in full, 653 receipts, 524 sale papers, 654 tax certificate, 633 rej^istrations generally, 025 where dififerent lots in same municipality, 021) where instrument ^includes lands in differ- ent municipalities, 026 searches of title, 027 " reference," 027 " lot," 627 general search, 027 search of alphabetical index, 029 general search, 629 abstracts of title, 030 certificates, 625, 631 re^isterini4 plans, 631 furnisiiinH statements under sections 32 to 35; 031,040 affidavits, 031 exhibiting originals, 631 figures in abstracts, 633 services under election laws, 640 disputes as to, 033 Scliedule of — to be posted, 633 ^ statement to be given on reqi > recovery of — from niunicipali M must be paid before registratio 'i'H jurisdiction of Province in, 625 INDEX. 717 Rkoihthy A.ct— Continued. fees for reuistrars, account to be kept of, 034 annual return of, (534 where ro«i8trar dismissed, 038 rcfjistrar'a share of, 035 ••urphis of, 030 surplus to be apportioned as received, 030 method of reckoning re^istrar'a share, 037 liability of sureties in respect of, 03',> percentage payable to Provincial Treasurer, ()3'.> " net income," 040 returns to Provincial Treasurer, 040 future advances— mortt;a>.'eH for, OO.I insolvency— registration of proceedings in, 52!», 531 Inspector of Registry OHices-disbursements of registrar re- vised by, 040 disputes referred to, 633 duties of, 040, 041 pay of, 641 registrar to furnish information to, 041 " instrument "—moaning of, 528, 52!), 531 what— may bo registered, 500 interpretation, 528 judgment— alimony, 508, 575 registration of, 529, 508 " land "—meaning of, 529, 532 lease— assignment of, 501 covenant for renewal in, 501 mortgage of, 501 possession must go with, 501 registration of, 528, 501 letter of attorney— »(;c " power of attorney " /Mi)e;/rf(?/w_certificate of- registration of, 529, 508 vacating, 508 lunacy— registration of proceedings in, 529, 531 mandamus to compel County Council to provide buildings, 530 Master of Titles— power to search in registry offiue, 535 mechanic's liens, 007 mortgage— by way of further charge, COG for future advances, 005 not registered in full, 053 registration of, 528 notarial copies— registration of, 570 "'•■il 718 INDEX. Beoistrt Act — Continued. notice— actual, 584, 587, 596, 605 of unpatented lands, 585 purchaser with, from purchaser without, 587 what is, 596 notice to solicitor, 598 possession is not, 599 constructive, 592 of sale — registration of, 654 office — regidtry — »ee " division " County Council to provide, 530 iu Toronto, 534 removal of, 535 Order in Council — registration of, 528, 529 how registered, 574 origin of Act, 528 patent -tee " Crown grant " penalty for unauthorized entry, 594 plans of subdivision, 607 scale of, 607 what to be shewn on, 607 how mounted, 008 instruments must conform to, 608, 611 exception, 655 penalty for refusing to register, 608 verification of, 608 form of certificate, 649 width of roads in, 608 of unpatented lands, 608 who has a right to file, 609 remedy for unauthorized filing, 609 rights of mortgagor and mortgagee as to,610 where instrument conforms in part, 611 uncertified, 612 index to, 618 unregistered — when instruments may refer to, 614 where subdivision before 4th March, 1868, 614 not binding until sale under same, 614 agreement to sell according to, 615 sale by— rights of purchasers and public, 615 e£fect of — as evidencing dedication to pub- lic, 617 INDEX. 719 Bkhistbt Act — Continued. plan of subdivisions, not binding until absolute dedication, 617 subsequent — actual dedication not affected by, 617 jurisdiction of courts to amend, 615, 618 at whose instance amendment may be made, 618 of whole town or villages, 619 delivery of — to municipal treasurer, 622 of Crown lands to be furnished to regis- trar, 624 power of attorney — certified copy of, 669 entry to be made where deed executed by, 571 registration of, 528, 530, 569, 570 probate — registration of, 529 proceeds of real estate devised for sale, 532 process — sale under, 591, 592 purchaser — subsequent — must prove valuable consideration, 585 priority of registration by, 584 to what relief entitled from devisee, 591 receipt in deed— how far evidence of valuable consideration, 586 rectification of instrument — equitable right to, 600 registrar — every office to be kept by a, 536 appointment of, 536 during pleasure only, 536, 537 amount of security to be given by, 537, 538 form of security given by, 537 and sureties — liability of, 539 liability of— not limited to covenants, 53!) oath of office of, 540, 643 , deputies of, 540 appointment of, 540 removal of, 540 oath of office of, 540 or deputy not to act as agent, etc., 540 engage in certain callings, 540 to supervise work personally, 541 . where to reside, 541 keep office, 541 removal of, 541 liability of, 541 for improper registry, 542 indirectly causing damage, 546 omission in abstract index, 544 720 IXDEX. i >>. u Beoistrv Act — Continued. registrars — liability for, is to those who pay him fees, 544 measure of damages, 544 similar to liability of agent for invest- ment, 545 how far entitled to notice under cap. 73 ; 546 special remedies against, 54C indictment against, 546 hours of attendance of, 547 in Toronto, 547 deputy, attendance of , 547 delivery to— at his house, 548 to make searches, 548, 550, 551 abstracts, 548, 550 exhibit originals, 548 certify copies, 548 abstracts by — form of, 548 liability for errors or omissions of predecessors, ■>48 to have a seal of office, 553 production of papers by, 553 subpoena to, 554 fees of — see " fees " disbursements of, 640 to furnish assessment commissioner with list of con- veyances, 635 registration — effect of prior, 584 priority of, 685, 589 pleading, 590 title not complete until, 589 for other purposes than priority, 590 of bargain and sale, 500 property of religious institutions, 590 prior — of mortgage gives priority to power of sale, 587 to be notice, 592, 594 on what principle, 592 against whom, 593 how far presumption absolute, 593 to what extent, 593 of any interest in the lands, 593 but not so as to affect covenant against incumbrances, r>'.)3 what constitutes, 595 receipt by registrar, 595 where two instruments regis- tered together, 596 INDEX. 721 Registry Act — Continued. registration — certificate of — form of, 617 minute of — form of, 647 in full, when introduced, 528, 570, 623 method of. 570, 672 orif^inal to be deposited, 575 where memorial previously reg- istered, 576 by memorial, 570, 575 of mortf,'aso not in full, 653 notico of sale, 654 proof required for, 562 defects in, 5'.)4 contents of affidavit, 562 where instrument executed before Ist Jan., 1866; 575 defects in — cured. 622, 623 absence of certificate, 623 where deeds contain lands in different counties, 572 township made part of new township, 623 release— registration of, 528 repeal clause, 656 re- registration where registry books lost, etc., 622 sheriff's deed — registration of, 52!), 531 within six months, 528 short title, 528 tacking — how far abolished, 596, 603 principles of, 602 tax certificate — registration of, 529. 531 deed — registration of, 529, 531 witliin eighteen months, 591 before 4tli March, 1H68 ; 592 Toronto — office hours in, 547 registry divisions in, 534 vendor's lien — unregistered, (iOO will— registration of, 528, 530, 574, 591 in Toronto, 535 where subsequent conveyance, 574 what proof recjuired, 570 within twelve months, 591 exception in case of inevitable difficulty, 591 what comprehended by, 591 writing — contract in — registration of, 529, 531 writs of /i.fa., priority of, 603 H.B.P.S.— 46 722 INDEX. , I; Relations — possession of — andor Real Property Limitations Act — tee lb. Release — of claims— covenant, 237, 269 power of appoinment, Gl registration of, 528 Remainders— rale under Devolution of Estates Act, 328 Remainderman — under Real Property Limitation Act— »«« lb. Removal of deposit from custody, 520 proceedings, 165 Rent — charge is a hereditament, 6 release of, 68 covenant to pay, 244 increase or reduction of — as evidence, 37 occupation, 82 payment of — as evidence of new tenancy, 36 under Real Property Limitation Act — see lb. under Devolution of Estates Act, 324 Repairs — covenants for, 245, 248, 250 execution of— evidence of tenancy, 36 Repeal clause in Registry Act, 656 Report as to partition, 194 confirmation, 195 Representation among collaterals, 295, 299 Representative — gee " Personal Representative " Requisition for deposit — form of, 618, 521 Reqoisitions — see Vendor and Purchaser Act Re-reoistration — where books lost, etc., 622 Rehcission of contract— question of, 507, 612 Reserve — sale without, 65 Reserved bid and reserved right to bid, 66 sale below, 67 Resident out of Province, 353 Residue under Devolution of Estates Act, 289 Reversion — " entitled to any," 493 Reversioner — see Remainderman Rkversions — purchase of, 89 undervalue, 89 onus probandi, 89, 90 summary of decisions, 92 solicitor acting for both sides, 92 delay or acquiescence in, 92 unfair dealing in, 98 INDEX. 723 Bbvebbions — purchase of, oosta in cases of, 9B wbat are properly so called, 94 BioHT — mere, 73 of action— an "action " nnder Real Property Limitation Act person claiming, 480, 487 way — see Way question between vendor and purchaser as to, 508 to convey — covenants for, 225, 261 requisitions as to, 505 Road — possession of, 356, 357 («) Rules — »ee " Consolidated Rales" St. Leonard's Acts— 22 & 23 V. c. 25, and 22 & 24 V. c. 38— s« Statutes Sale — meaning of, 18, 14 free from encumbrances — provision for, 55 not voided by mistaken payment, 64 without reserve, 65 frauds on, 96 »ee " Power of Sale " under Partition Act see Ih. Sand — right to take from seashore, 483 Schedule — see various Acts are parts of Short Forms Acts, 222, 256 Scintilla jttris — abolition of, 70 Sejil — how affixed, 12 (note) Searches — see under Registry Act, " fees " Security by administrators, 304 powers of court as to, 305 for succession duty, 305 Seisin — continued, 70 livery of, 15 Se bvant — rule against adverse possession by, 461 see Caretaker Settlement — included in " conveyance," 11 Shelley's case — rule in, 328 Sheriff— discharge of mortgage by, 582 724 INDEX. tm 1 i 1 ^ i f h A ;*i Shebiff's deed — registration of, 529, 531 within six montlis, 591 Shoot — right to, over land is an " interest," 7 Short Forms Acta (generally), 217 origin of, 217 criticisms of, 217, 218 reasons for adoption in Ontario, 217 strict construction of, 219 costs under, 220 Short Forms of Conveyances — Act respecting, 221 bar of dower, 238 breach of covenant, 225, 226 damages for, 2'2(> onus of proof, 230 conveyance — form of, 222 covenants under, 223 et seq. generally, 223, 224 right to convey, 224 et seq. quiet possession, 231 free from incumbrances, 233 further assurances, 234 as to title deeds, 235 no act to incumber, 23(3 release of all claims, 237 who may sue on, 228 who may be sued. 229 damages for breach of covenant, 2L6 deed under, 221 failing to take effect under, 221 what included by, 221, 222 form of. 222 directions as to use of forms, 223 dower — bar of, 238 " express exceptions," 223 "express qualifications," 223 feminine for masculine, 223 " free from incumbrances," 233 " further assurances," 234 "lands" — meaning of, 221 local improvement rates, 236, 237 " no act to incumber," 236 nominal damages, 228 " notwithstanding any Act," 230 " party "—meaning of, 221 LXItEX. 725 Short Forms of Conveyances—" quiet possession," 231 release of claims, 237 "rif,'Lt to convey," 225 Schedule A., 222 B., 221, 223 directions as to, 223 schedules— part of Act, 222 title deeds, 235 variations, 223 Short Forms of Leases- Act respecting, 239 tt88i},'nment of lease, 249 assigns of lessee, 243 liability of, 243 " computed," 241 covenants to run with land, 239, 243 affirmative or negative, 240 not to assign or sublet, 239, 249 to pay rent, 244 taxes, 244 repair, 245 keep up fences, 247 not to cut timber, 248 right to view state of repair, 248 leave in good repair, 250 reentry, 250 quiet possession, 252 deed under, 239 failing to take effect under> 239 what to include, 239 " demise and lease," 241 directions as to use of forms, 242 " express exceptions," 243 " express qualifications," 243 feminine for masculine, 242 fences, 217 habendum, 242 lease— form of, 240 meaning of, 241 postponed to mortgage, 253 " name or names," 242 payment under lease, 241 (h), 244 " quiet enjoyment," 252 re-entry, 250 et seq. rent — covenant as to, 244 repairs, 245, 248, 250 1 726 INDEX. ■ i Short Forma of Leases — Schedule A. , 240 B., 239, 242 directions, 242 taxes, 244, 245 timber, 248 view — right to. 248 " yielding and paying," 241 Sbobt Forms of Mortgages — Act respecting, 255 bar of dower, 257 covenants — see also proviso to pay, 25!) good title, 2u0 ri({ht to convey. 261 quiet possession, 261 free from incumbrances, '263 further assurances, 263 as to title deeds, 264 no act to incumber, 264 insurance, 265 release, 269 directions as to forms, 256 feminine for masculine, 257 " free from incumbrances," 263 " further assurances," 263 insurance, 265 mortgage clause in policy, 265 " loss if any payable," 267 covenant without assignment, 268 premiums — when payable by mortgai>ee, 268 right of subrogation, 268 " lands " — meaning of, 255 leases by mortgagee, 262 mortgages under, 255 failing to take effect under, 255 what included, 255 form of, 256 " no act to incumber, 264 " party " — meaning of, 255 personal covenant, 259 limitations as to, 260 power of sale. 269 -»ee. •' Power of Sale " proviso for redemption, 258 power of sale, 269 INDEX. 727 Short Forms of Mortgages-proviso for right of distress, 276 acceleration, 277 re-demise, 280 quiet possession by mortgagee, 2G1 mortgagor, 280 redemption. 258 Schedule A., 366 B., 256 directions, 256 schedules form part of Act, 256 title deeds, 264 Silver mine — how far included in " land," 2 Sister— «ee " Brother " SoccAGE- lands in Ontario held in, 5 Solicitor— attestation of purchase deed by, 27 payment of consideration to, 28 acting for both sides, 92 concealing deeds, 97 liability for investments, 472 service on -in partition, 188 Specialty— action on, 259, 260 Specific performance-how affected by Vendor and Purchaser Act, 512 not given in partition action, 169 Sporting- rights of, 483 SQDATTBHs-under Real Property Limitation Act-»« lb. Stables— included in conveyances, 45 meaning of, 46 Stale demands— sfe Acquiescence Stamp on deed— sufficiency of, 508 Statute of Distribution-^ee under Devolution of Estates Act of Frauds— operation of— ou leases, 32 of Limitation8-«ee Real Property Limitation Act, R. S O 1887, c. Ill . . . of Uses, 16 Statutes — (Italict denote text in full.) 27 Hen. VIIL c. 1(» ; 16 Ki ; 16, 54 32 Hen. VIII. c. 34 ; 244 13 Ehz. c. 10 ; 395 27 Eliz. c. 4 ; 13 21 Jac. I. c. 2 ; 380 16; 393.421,439 22 & 23 Car. II. c 10; 294 et seq., 307, 336, 342 8. 1 ; 294 3; ^94,m?i 4; ;?9j5, 299 5; H95 6; 29(i 72S INDEX. Statutks — Continued. 29 Car. II. c. 3 ; 3», 32, 42.*) 8. 3 ; 35 4; 7,1.^ 24 ; 2.%', 307 l.Tac. II. 0. 17; 21(6 e< ««7., 2»8, 334,340 8. ; Sfx: 7 ; 39t], 308, 3;i7 2 & 3 Anne, c. 4 ; 11, 600 Anne, c. 35 ; 43 8 Gfo. II. c. 6 ; 43 9 Geo. III. c. 16 ; ;W.5 14 (Jeo. III. c. 78, 8. 83 ; 109 26 Geo. III. o. 3 ; 54 31 Geo. III. c. 31 (Imp.) s. 43 ; J 32Geo. III. c. 1(U.C.); 386 2i»7 628, 545 54, 528 .528 528 528 59 Geo. III. c. 14 " s. 12: 80 33 Geo. III. c. 8 33 Geo. III. c. 5 37 Geo. III. c. 8 39 Geo. Ill, c, 4 50 Geo. III. c. 10 58 Geo. III. c. 8 Geo. IV. c. 7 88. 19, 20; 528 10 Geo. IV. c. 8 (U.C.) ; .')28 2 \Vm. IV. 0. 35 " 158, 100, 164, 109, 178, 198 8.9; 184 2 & 3 Wm. IV. 0. 71 (Imp.), a. 1 479 8.2; 480 4; 488 5; 490 6; 491 7; 492 8; 492 3 Wm. IV. c. 14 (U.C.) ; .528 3 & 4 Wm. IV. c. 27 (Imp.) ; 439 470, 497 8. 2 ; 354, 456 3; 38, 356, 381, 382, 394 404,405 4; 404 5; 405 6; 408 7: 396 3&4 Wm. IV. c. 27 (Imp.) 8. 8; 395 9; 392 10; 409 11 409 12 411 13 414 14 410 10; 494 17 4% 18 497 20 407 21 45(> 22 4r.7 23 457 24 409 25 458, 408 20 473, 476 27 470 28 432, 437 M , 420 35 ; 420 36 ! 157 39 ; 410 40 ; 430, 4:;h 41 ; 425 42 ; 425, 4:30 3&4Wi n.IV.c.74(Imp.)8.10; 5.1 c. 100 " 281, 325 8.2 325 3 327 4 328 5 331 6 331 7 332 8 333 9 333 10 , 329 12 ; 330 .i 4 Wm. IV. c. 1(U.C.); 281, 331, 384, 386, 421, 439 8.11; 325 : 39; 157 i 46; 51 47; 53, .54, 528 c. 16 (U.C); 528 7Wm. [V., see 1 V. 0. 21 ; ip INDEX. 729 Statutes- Continued. 1 V. c. 26(Inip.); 21, 22 14&1SV. 0. 7(C«n.);8. 5; 3!) 8.3; 2S0 6 : 74 6; 2Srt 8; 120 10; 61 c. 45 (Can.); 11(5,119 1 V. c. 28(Iin|..); 4:{8 5!' " 528 V. C. lfi(lT.C.); 387 'i« " 88.1,2; 11» V. c. 17 " m. 1.2; 86 10 V. c. 121 (Can.) ; 4:9,612 621 INDEX. 781 Statutes— Co/i2; (i29,636| M. 98-105; ftiC c. 12.5, 8. 25 ; 307 1«0, H. 159 ; 84 42 V. c. 20 (().); .r,28 29 " 10!) 43 V. 0.14 " 4H7 24 " .Vi8 44 V. c. 10 " 528 44A45V.C. 41(Imi..). 1.136,217 8.2; 9,100 6 ; M, rm 6; 40 7; 57. Ill 8; 27 15; 101 1«; 107 19; 1(3 108 129. 130 23 19, 20 61 26 26 siS 124. 129 19, 31 55 4G&46V. c39(Imp.);8. 6; 62 8. 12; 104, 105 43 (Imp.); 112 46&47V.c.52(In,p.), 8. 42; 134 47 V. c. 16 (O.), 8. 2; 150 I'J " 162 47&48V. c. .')4(I,ni.); 530 48 V. 0. 2 (O.) ; 528 23; 36; 50; 51; 52; 54; 65; 56: 61; 63; 69; 13 16 23 49 V. c. 16 «. 11; 293 528 528 8. 2 ; 621 8. 30 ; 621 20(0.); 1,108 8. 2 ; 23, 46 3; 11 49V.O. 20(0.);,. 6; 23 15; 129 22(0.); 281. 285, 293, ■117, 334 «• 5 ; 305 C-24(0.); 628 R. S. V. c. 117 ; 62i» 136,8.8; Ayj WV. 0.7(0.); 528 8. 35 ; 282 8 " 528 ^ ^ 26(0),8. IW; 109 R.S.O. 1887, C.5; 660 7} 650 16, 88. 15, 20 ; 638 24,27 0. 24, 8. 17 ; 585 25, d. 16 ; 685 27, 8. 27 ; 685 44 ; 317 8. 28; 185 30; 5<59, 575 31; I9U 62; 172,279 53 (10) ; m, 204 88; 429 97; 191 105; 216 108; 216 125 ; 192 c. 50 8. 16 ; 158 18; 21»2 30; 292 31; 292 ()3 ; 304 64 ; S 3; 17 13 ; 102, 123 4; 19 14; ii'^, 159 6; ^.?. 159, 330 15 ; 125, 159 6 ; 26, 586 16; i.W 7; '27 17; ISl 8; £9 18; i.fo", 146 9; S7 19; 138 10; 41 20; /J^, 654 11; 4o 21; i.?.'> 12; 4o 22; 1S9 13; 51 23; i^ 14; 5.i 24; 140 15 ; ,55, 506 25; 7.^/ 16; 55 26; 7^/ 17; 57 27; W 18; 6(> 28; i^i 19; 67 29; W 20; 04 30; i^.9 21; «5 31; /5A277 22; 65 32; 153 23; 6'.? c. 103, 8. 8 ; 41 24; 6'.5 R. S. 0. 1877, c. 104, 25; 67 8.1- 155 2J; 68 2 155 27; 68 3 156 28; 7fl 4 157 29; 7i 5 158, 303 30; 74 6 164 31; A'5 7 165 32; 85 8 165 33; cV9 9 , 179 34; *9 t 10 ; 179 INDEX. 733 5 TATUTEB— C'oWtinMfd. R. S. 0. 1887, 0. 104, R. S. 0. 1887, c. 104. 8. 11 ; ISO 8.57; 211 12; 1S2 58; 211 13; 1S3 59; 211 14; ISii 60; ^/i 15 ; m 61; Sm 16; 1S5 62; ^/3 17; 1S5 63; ^/3 18; i Directions 1-4 ; 22;i 32 ; 170, 190 Forms 1 ; 224, 315 33 ; 170, 190 2; i)»,224 34; iW 3; .58, t?,?/, 315 36; 191 4; 58, i»*? 36 ; /r/^ 5; m,2S4,-Alb 37; 194 6; i'.«,315 38; i.'to- 7; 234,£i6',315 39; m;, 205 8; ;?,^, 315 40; m 9 ; i?,7cS', 257,315 41 ; /,W R. S. 0. 1S87, c. 100, 8. 1 ; 2.i9 42; aoo 2; 2S9 43 ; ^W, 205 3; 46, 2S9 44; 200 4; 2S9,2\^ 45; f«> Schedule A ; 2p, 315 46; 2(10 Directions 1-5; 242, 2')7 47; ^0^ Forms 1 ; 244, 315 48; 202 2; l'^4 49; ^^:^ 3; ^'^5 60; mf 4; 247 51; ;?04 62; 205 53; 205 64; 2(y5 55; 205 66; ?W 5; 24.V 6; 24s 7; 24.'> 8 ; 245, 250 9; £50 10; 252, iW 734 INDEX. Btatctes — CoHtinxied, R. S. 0. 1887, c 108. R. S. 0. i:87 c. 107; 218,255 8.16; 328 8. 1 ; 255 17; 320 2; 255 18; 329 3; 255 10; 329 4; 45,222 20; 126, 330, 414 255 21; 330 5; 256 22; 331 Schedule A; S56 23; 331 Schedule B ; 256 €« seq. 315 24; 332 Directions 1-3 ; 223, 256 25; 333 Fonrisl: 257 26; 333 2; 258 27; 334 3; 269 28; 334 4; 25n,i^ 2{»; 3S5 5; 224,^60 SO; 335 6; 26t 31; 308, 335 7; 262 32; 3.17 8; S6S 83; .338 9; 2Sa 34; 338 10; 264 35; 308,55* 11; 264 36; 55.4 52; ^2 5 , 303, .*'>)■ 53; 301, 342 6 ,W, 337 54; 197, 347 7 505 55; 197, 347 8 509 56; 197, 347 0; ,9/2 57; 197, 347 lo- 282, 315 R. S. 0. 1887 , c. 109, 8. 13: 61 ll i 2,324 30; 22 12 ; 325 37; 308 13 ; ^^'J 38; 308 14 ; .?f5 110, H. 3; 272 15 ; 327 17; 123 '&'- fc INDEX. 735 3TATDTE8— Conf/HMrtJ, R. S 1887, c. 111. ~ R. S. 0, 1887, . Ill ; 245 8. 35 ; 4S0, 48! 8. 1 ; .io;! 36; 4S7 2 3 ; S52 ; .ioS 37 ; 4SS 38 ; 484, 4-^ 4 ; .?54 ; 355 (1); 556' (2); 3Sl (3); 5*^ (4); 5.¥f, (5); 392 469 39; 4'n 40; P2 41; 4D3 42; 493 43; ^^^ 44 ; 4%, 501 45; ^.^^ • (6) ; .?,95 R. S. 0. 1887, 0. 112 ; 501 (7); S'X, 461, 467 8. 1 (1) ; 5()1 (8)i -^« (2); 50S (9); m (3); SOS (10); m (4); SOS (11) ; 38, 394, 405 2 ; 5(^4 (12); 405 3 ; 504 6 ; ^7 , c 113 ; 355, 3(i7 7 ; •#«* 114 ; 316, 056 8 ; 41^ 8. 23 ; 630 9 ; .^9 57; 586 10 ; 410 69; 102 122. 128 11 ; 4// 80; 5!t3-598 12 ; 4^4 82; 593 13 415, 435, 464 84; .53.{ 611 14 ; #« 95: 628 15 ; 4M, 439 R. S. 0. 1887, c. 115 ; 140. 517. 524. 16 4i5 528, 055 17 ! ^^ 8. 1; 517 18 4.ii) 2; 517 10 4'it, 400 3; 517 20 ^i7 4; SIS 21 4^ 5; SIS 22; 4is 6; SIS 23; 42«, 43r., 45s 7; 519, 625 24 427, ^.';^» 8; 519, 025 25; 454 9; 519 2(5; 454 10; 5211 27; 4.W 11; 520 28; ^.57 12; 52(1 29; -^77 13; 520 ;«); 31; 45S 47J 14; 15; 520 521 32; 33; 47H 47t> Schedule 521 el sfq. c. 110 ; 310. S;« 34; 479 8. 27 ; 425 73G INDEX. Statutes — Continued. R. S. 0. 1S87, c. 11«, Forms 42 & 43 ; 503 c. 118 ; 480 11!) ; 486 120; 486 12-.', 8. 8; 24 124; 531 132, 8. 23 ; SOG 134; o81 137, 8. 3 ; 181 147; 143 s. r.2 ; 220 152 ; 85, 3(58, 616 167, H. 155 ; 10!) 21» ; 48 220 ; 48, 49, 486 237, 8. Ht ; oiJO 8. 20 ; 5!K) 51 V. c. 15(0.); 144,271 144 144 3 ; 137, 138, 140 4 ; 1 41!, 147 5; 14s 16(0.); L'lr, 17 " 528 8. 10 ; 393 20; 293 36 (D.); 52'J 8.1; 52 V. c. 19 (O.); 5;{ '* 21 " 27 '• 28 " 31 " c. 33 54 V. c. IS 528 553 W, 271 21(> 528, 625 8. 1 ; 024 2; 524 508 316 et seq., 320, 528 f(. 1 ; 282, 290, SUi, 321, 323 2; 313. J/7 3; S17 4; MS 5; 3 IS 6 ; ;*/.s', 322 7; 319 54 V. c. 19 (Ont.), s. 1 ; 471 2; 4T1 13; ^7/, 472 14; 47s 55 V. c. 6 (O.). s. 5 ; 306 17 " 528, vm 21 " 528 22 " 528 42 " ^.527; 617 624a; >'.?7 48 " 8. 151 ; 531 192; 84 • 56 V. c. 55 " 2S 17 " 428, 441 8. 1 ; 259, m) ^ ; .i'iO 20(0.) 283. 290. 319 W seq., .322 8. 1 ; 320 2 ; .M>,322 3 ; 320,i'22 4 ; 321 21(0.) ; 517, 527, 653 B. 1; 52S . 52S, 560, 563, 573, 574, 591, 624 3; 533 4; 53i 5 ; 634 6; 534 7; 334 8; 535 9; 53(1 10; 63U 11; 630 12; 5.f7 13; 537, 642 14; o3S 15; 53S 16; 53S 17; 53S 18; 53S 19; 530, 560 20; 541), 643 21; 541) 22; 640 23; 640 IXDKX. 737 8TATCTE8— Cont in ued. OOV. 0,21(0.). 8. 24; 25; 20; 27; 28; 2«; 30; 31; 32; 33; 34; 35 ; 3G; 37; 38; 3ft: 40; 41; 42; 43; 44; 45; 40; 47; 48; 4i); 50; 51; 52; 53; 54; 55; 50; 57; 58; 5<(; 00; 01; fi2 ; 541 540, 541, 558, 500 r>47 54s r,5.i 004, 022 ;i65 00'), 043 534, 55(i, 031, 040 540, 557 54i>, 55S 55S, 031, 040, 050 55ft, 01 .S, (}44 5i;(>, 045 533, 5fiO 530, 5111 5iL', 503, 046 5(U 5ij.i 5tl.i, 58.3, 5!)0, 040 5lJ4, 5!(4 •i'''^, 594 5t;4 500 507 507 507, 047 530, 507 50S SOS 630, 5ns 5.30, ,•>;.'/, 570, 572 '5^''/, 570, 572 600, 570 5TO "/ 66 V. c. 21 (O. 8.70; 71; 72; 73; 74; 75; 70; 77; 78; 7!>; 80; 81; 82; 83; 84; 85; 80; 87; 88; 80; ttO; 91; 92; 1)3; !I4; 95 ; 90; 97; 98; 99; 100; 63; 571, 647 04: 572 05; 00; 07; ',', .595 ''i, 047 ). 574, 691 575, 591, 624 575 575 575 570 102, 123, 124, 128 213, 530, 570, 648 5Sl oSl 5S1 5SJ, 648 5S.i 504, .590, 5SJ, 0;<3, 649 .^.30, oS.i 573, ,;,v;, 024 530, 5(i4, 5:ni 5.S0, 575, 5!)I 531,,-;,'// 531, 5tiJ 5m 594 59i 5U4 571, 573, 595 5.^7, 5! to, oix; 587, 5!K), 5;K', 53.3, 0117, 013, 019, O-.'O, 049, 055 Ot.H OU ou oil, 01.3, 014 «W ; 529, 57.}, 024 69 ; 629, 574 ii.H.r.s — 17 101 ; 013, 014 102; 0/;. 103; 010 104; ^J,> 105; f;,'? 100 ; M'J' 107 ; OJ.r 108; 6;?^ 109; 02.i 110; 529, 573, ';;?^ Ill; 220, 6',',^ (1); 025 (2); 6','?' 738 INDEX. Statdtes — Continued. 56 V. c. 21 (0.), 8. 111. 56 V. c. 21(0.). 8-8.(3); 6g9 8.127; 640 (4); 630 128; 640 (5); 631 129; 641 (6); 631 130; 641 (7); 622, 631 131; 641 (8); 631 132; 641, 6m (9); 631 Schedule 642 to 051 (10): 632 56 V. c. 24 (0.). 8,6; 607 (11); 6-JJ 29 (D.), 8.370; 97 (12); 633 965; 329 (13); 6'iJ 31 '• 513 8. 112 ; 633 67 V. c. 25(0.) 554 113; CJa 26 " 604 114; 633 34 " 528, (505 115; eiJ 8. 1 ; 6l>5 116; 634 2 ; 6(15 117; 654 35 " 528,531,570,625, 118; 655 626, (>41, 653 119; 516,614, 555,640 s. 1; 6!i3 120 ; 546, 636, 640 2; 654 121 ; 639, 640 3 ; 60J), 655 122; 6#>, 640 4 ; 558, 656 123; 640 5; 656 124; 640 R.S.Manitoba, c.48,88.34&a'5; 87 125; 6'^ C. S. N. B. c. 84, 8. 30 ; 445 126; 6'^; 'I :l SiATUTonv declarations— twenty years old, 501 as evidence, 613 deposit of, 517, 518 BcBuissioN — tee " Ac(}uiescence " Succession duty — questions as to, 508 Successive trespassers in privity, 423 independent, 423 Summary applioiktion to High Court — by vendor and purchaser, 504 SuPKRioH lines, 333 Surrender — covenant to — inchided in conveyance, 11 when-^most be by deed, 29, 36 by operation of law, 36 of life estate —effect on remainder, 71 Surrooate Judge, 157 Survey— compensation in cases of unskilful, 85 effect of improper instructions for, 88 ScBTivoRSHip — tee " joint tenancy " INDEX. 789 Table of descents, 848 Tackinq— how far abolished, 696, 603 principles of, 602 Taxbs— certificate of, 529, 581 covenant as to, 244, 245 payment of— as evidence of ownership, 865 questions as to adjustment of, 507 sale for — when statute runs, 367 registration of deed, 529, 581 within eighteen mo iths, 691 Tenancy — by entireties, 101 from year to year, 34 joint — nature of, 24 under unwritten agreement— ««e " Lease " what constitutes evidence of new, 36 tee under Real Property Limitation Act Tenant by the curtesy, 161, 202 for life — mistaken payment to, 64 under Partition Act, 160, 169, 202 Tenants in common— «ce Real Property Limitation Act under Partition Act, 168, 159 Tenements— corporeal— to lie in grant, 14 legal signification of, 4 migar signification of, 4 Tenure of land in Ontario, 5 " Terms— on the "—meaning of, 105 Timber — covenant not to cut, 248 cutting— an act of ownership, 373 sale of land with, 64 Time— required to elapse before distribution of estate, 296 partition, 166, 178 vesting of estate of intestate, 316, 319 Title— root of— period for, 501 under Real Property Limitation Act— «<•« lb. deeds— covenant as to, 235, 264 right of mortgagors to inspect, 107, 108 fice Custody of Title Deeds Act requisitions as to, 503, '•04, 508 deposit of, 517 when power of sale exercised, 142 740 lyuKx. yi 1 T.V. ' 1 1 k' ii •' Tolled " — meaniiifi of, 410 right of entry not, 410 Tolls — lease of, 34 (/) Toronto — registry divisions in, 534 office hours of, 547 Tortious alienation, 78 operation of feoffment, 17, 18 TRANSMDtATioN of equity, 7 Trees — sale of growing, 7 included in conveyances, 45 significations of, 47 Trespasser — under Real Property Limitation Act— nee Ih. Trust— ««« under Real Property Limitation Act Trustee — see under Real Property Limitation Act deposit of title deeds by, 520 requisition as to appointment of, 50() right of — to convey, 506 whether required to receive money personally, 506 Trustees — new — conveyance to, 24 for sale — under Partition Act, 109 a> u. Unclaiued moneys under Partition Act, 214 et seq. Uncles and aunts — descents between, 300 Underletting — covenant as to, 239, 249 Undervalue— effect of — on purchase of reversion, 89 Underwoods — included in conveyance, 45 meaning of, 48 Undivided— share — see Partition Unfair dealing, 93 Unknown parties in partition, 187 Unnecessary proceedings in mortgage sales, 149 Unskilful survey — provisions for compensation, 85 et aeq. t-% INDEX. 741 " Use of any water," 480, 480 " UfiED or enjoyed with," 60 User cannot give title against some unless against all, 480 by tenant over landlord's property, 487 tee " Prescription " Uses— doctrine of, 10 limitation of, 70 Statute of, 16 Y. Validity of sales by personal representatives, 318 Value of land— elements in calculation of, 80, 81 Vaiuations in Short Forms Acts, 21!), 223 Vendor — see Real Property Limitation Act lien of— unregistered, 000 Vendor and Purchaser— Act to amend law of, abandonment— raising question of, abstract — question as to completeness, 505 action— right of-how affected by application under Act, 512 Acts of Parliament — recitals in, oOl adjustment— questions of, 507 administrator — requisition as to right to convey, 500 affidavits as evidence, 512, 513 cases— order to be made where conflict of, 511 claim for compensation— application to High Court as to, 504 condition of sale— question as to, 508 contract— validity of, not to be brought in question under the Act, 505 conveyance- questions as to form of, 508 costs of investigating title, 507 may be charged on vendor's property, 511 of application under Act, 514 " incidental," 514 extra — caused by improper claim, 515 against purchaser assure his title, 515 where fair point for discussion, 515 where deeds invite inquiry, 515 Courts— what questions decided by, under Act, 505, 509 covenants— question as to performance of, 508 what, to be inserted in deed, 508 742 INDEX. .'I t 'ij , Vendoh and Purchaser— <7on((fi»^ IMAGE EVALUATION TEST TARGET {MT-3) I 1.0 I.I ■*^IIIIIM IM .. 1112 IM 114 IM 1.8 1.25 1.4 1.6 ^ 6" — ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716)872-4503 ,\ ^V 4.^ i\ \ lV ^ I ^ 744 INDEX. Ifi Widow — under Devolution of J'J states Act — see lb. "Wife and husband — conveyances and fjifts between, 23, 25 possession of — following that of husband, 359 (ii) Wild lands— «ee Real Property Limitation Act Wills — annexed — administration with, 29G heir taking under, 327 limitations in, 19 et seq. occupant made setting up Statute of Limitations, 307 registration of — see Registry Act requisitions — as to construction of, 507 Withdrawal of caution, 317 Woods included in conveyances, 45 significations of, 48 Wbit of yi^ri/ac/as— priority of, 003 summons — partition proceedings by, 1(59 " ''iiriNU — contract in — registration of, 529, 531 leases in, 30 assignment of leases in, 35 W'^oNG — conveyances operating by, 18 Wkonofcl perception — see Real Property Limitation Act receipt — see Real Property Limitation Act " Wrongfully claiming," 392 11 Yards included in conveyances, 45 meaning of, 47 Tear to year — tenancy from — see Real Property Limitation Act " Yielding and paying," 241 i\ ct