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Tous les autres exemplairns originaux sont fiim6s en commenpant par la premidre page qui comporte une empiointe d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telie empreinte. Un des symboles suivants apparaitra sur !a dernidre image de cheque microfiche, selon le cas: le symbols — ► signifie "A SUIVRE", le symbols V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre fiimds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul ciichd, il est film6 d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la methods. 1 2 3 1 2 3 M B> 6 1 4 5 MP IN\ TI BAiiriBT: AD, THE k'4 iyND LATE EXAMINER IN LAW, UNIVERSITY OP TORONTO. TORONTO: ADAM, STEVENSON & Co., LAW PUBLISHEl^S, KINQ STREET EAST, 1869. TORONTO ; A. LOTILL A CO., LAW AND GBNERAL PRINTBHS, YONGB BTREBT. 'i > filSo^A^ PREFACE. In tl-e earlier days of this Province lillle altenlion was paid to conveyancing, or tiie investigation of titles. Pur- chasers of land appear to have been satisfied on receiv- ing a deed from some person professing to be the owner, and getting it placed on registry ; the past was not enquired into, and the fuliue was left to take care of itself. In later years the increased value of land has caused more attention to be paid to such matters, and it is now that the evil elfects of the former careless mode of deal- ing with land are being felt. Many of the older titles are, when closely scrutinized, found to be in a state of confusion, and almost unmarketable. Every day which passes increases the extent of the evil, as the longer the delay in attempting the removal of the existing defects the greater difficulty is experienced in procuring the evidence necessary to remove them. Towards remedying this state of things, the act for Quieting Titles, passed in 1865, is a great assistance. Under that Act an owner of land may, without waiting until his title is attacked, take active steps to have his title investigated and its validity declared. He can, by proceeding under the Act, compel the production of documents affecting his title, and the attendance of peir- sons capable of giving evidence as to former owners and their possession and dealing with the property. Whett t I: w PRErACK. he has made out his title satisfactorily lie is enliiled to a certificate of title, which is absolute and indefeasible against all the world, and which shuts out forever all question as to the past. At the present day, when more attention is being paid to the examination of titles, many of the profession find themselves at a loss. From the loose system which has prevailed, and to v/hich they have been accustomed, they are comparatively ignorant of the practice of conveyan- cers, and as to the evidence which they ought to require, and are entitled to call for when examining a title. ' To aid such in acquiring a knowledge of conveyan- cers' evidence, and as a step towards the introduction of a better state of things, this little work is offered to tho profession. In the first chapter some introductory re- marks are made upon the duty of solicitoison examining a title, and attention is called to the various points which should receive their notice. The next chapter is devoted to registration, and the requirements of the regis" try acts. The third and fourth chapters are occupied with incumbrances and particular titles, such as posses- si n, inheritance, &c. In tho next two chapters the subjects of attested copies, covenants for production, secondary evidence, and p;csumptions, are shortly treated of, and the concluding chapter is devoted to a few remarks upon proceedings under the Act for Quieting Titles. By way of appendix, the Act itself, and tho Consolidated Orders of the Court of Chancery relating to the subject are added, together with a few forms which may be of use to those who propose to avail themselves of the benefits of the Act. r ^ PREFACE. ■▼> It is not expected that this littlo work will supersede, or even rival, the more extended treatises of English writers upon the various 8ubjects embraced in it, but if it shall prove in any degree an aid to some who are engaged in the arduous duties of their profession, the labour bestowed upon it will be amply rewarded. OsGOODE Hall, , . .- . y., 28th October, 1869. J -V: TABLE OF CONTENTS. 3 Preface ^, Table of cases , Chapter I— Introduction ^ ^ Chapter II— Registration Chapter III— Incumbrances. 1 . Mortgages and Vendors' Liens 2. Crown Debts ' ,, . . 36 3. Executions 4. Taxes l^^ 5. Special Improvements "; 6. Mutual Insurance Companies *' ^ ^ 45 7. Dower 8. Curtesy ' _ . 4o 9. Legacies Chapter IV— Particular Titles. ^^ 1 . Possession 2. Inheritance 3. Wills ^., 4. Decrees " 5. Vesting Orders ^^ 6. Acts of Parliament ^^ 7. By-laws ^^^ 8. Powers of Sale ' 9. Tax Titles 10. Sheriff's Deeds Chapter V— Production and Custody of Deeds. ^^ 1 . Attested Copies 2. Covenant for Production 3. Custody of Deeds Chapter VI— Secondary E\ idence and Presumptions. ^ ^^ 1. Secondary Evidence ' 2. Voluntary Affidavits 8. Recitals ^^g 4. Presumptions ^^^ Chapter VII— Quieting Titles Appendix — ^^^ Quieting Titles Act ^^^ Con. Ords. Court of Chancery ^^^ Forms • ♦ CASES CITED. A. Allan V. Fisher, 96, 100, 106, 108. Annaudalc v. Harris, 127. Asher v. Whitlock, 54, 56. B. Babcock v. Mun. Coun. Bedford, 31. Bailey v. Hammond, 62. Baker v. Wilson, 129. Baldwin v. Duignan, 6, 33. Biill V. Ld. Riversdale, «3. Barclay v. Rainc, 116, 118. Bennett v Hamill, 73. Black V. Harrington, i-3, 106. Bodcn, Re, 80. Boucher v. Smith, 16 Boughton V. Jewell, 116. Bowden v. Henderson. 62, 130. Bowcn V. Evans, 74. Bradley v. McDonell. 143. Bradt v. Hodgkins, 9. Bratt V. Lee, 121. Brett V. Beales, 80. Rrookev. Campbell, 9^, 109. Bryant v. Bush, 4. _ V.Hill, 110. Burnhara v. Daly, 37. C. Chamberlain, Re, 1.H7, 140, 141, 155, 156, 157. Christie v. Johnston. 93, 106. Clark V. McGregor, 77. Cochrane v. Johnston, 14H. Colcleugh V. Stcrum, 72, 73. Connor v. Douglas, 102. Corbett v. Johnston, 106. Cotter V. Sutherland, 92, 1 10. Cottrell V. Watkins, 49. Crawford v. Curragh, 63. D. Dare v. Tucker, 115, 116. , Davey v.Diinant, 85. Davis V. Clark,' 107. Dickey v. Heron, IS. Dobbie v. Tully, 100, Doe d. Banning v. Griffin, 63. do Bell V. Reanmore, 96, *8, 99. do Boulton V. Ferguson. 111. do Dissett v. McLeod, 112. do GreenshieldB v. Garrow,! 1 1, 113. do Hagerman v. Strong, 111. do Manahan v. TurnbuU. 123. do Mountcashel v. Grover, 98, 108. do Myers v. Myers, 111. do McDonell v. Rattray, 56. do McGill V. Langton, 93, 106. do Oldham v. Woolley, 63. do Powell v, Rorison, 100. do Prince v. Girtv, 124. do Sherwood v. Matheson, 96, 108. do Spaiford v. Brown, Hi. do Stata v. Smith, 89, 98. do Upper v. Edwards, fc9, 93. 96. 99. 100, 106. do "Willis v. Birchmore, 66. Douglass V. Bradford, 111. Dundas v. Johnston, 55, 57, 58. Dyke v. Rendall, 8. E. Erringtun v. Durable, 96, 98. F. Fields '.. Livingston, 122. Field V. Moore, 77. Foley V. Moodie, 100. Ford V. Ld. Grey, 127. Fort V. Clark, 12«>. Foster v. Benl, 9. Fraserv. Matticc, .00, 109, HO G. Gardiner v. Juson, 111, US. Giffard V.Hart, 72 I t I I' « viii CASES IITKD. Oilegpic V. City ofHuiniltori, 91. (Joiigh V. McBridc, l'2.l. Graham v. Law, 45. (iroomc V. Ulakc, 65. . ■' (Sunn V. Doblo, 74. H. Hall V. Hill, 9f>, i)8, 10.3. Hamilton v. McDonald, JtS.'JO. Harbourn v. Bousuoy, 'JU. Hay ball v. Shepherd", 122. Henry v. Biirni-KH. 106. Heward v. Scott, 3, 46. ^ Heyland v. Scott, 68. Higham v. Ridgwav, fi.S. Hill, Ke, lar, 141, 152. . Holland v. Moore, 2.3. Hope V. Stevenson, 81. Hunter v Farr, .55. Hyde v. Dallawuy, 50. I. J. Irwin V. Harrington, 106. Jack d. Rennick v. Armstrong, 27. Jarvis v. Brooke, 103, 108, 112. V. Cay ley, 108, 112. Jones V. Bank of Upper Canada, ^6. Kccfe V. Kirby, 54. Kelly V. Macklem, l-S. Kennedy v. Green, 11. Knaggs V Ledynrd, 106, 110. laing V. \very, 150. V. Matthews, 149. Lash, Re, 78. ].atch V. Forlong, 85. Laughtenborough v. McLean, 106. Lee V. Willock, 62. Low V, Morrison, 49, 51, 56, 160, 159. Lynch v. O'Hara, 124 Lyoup, Re, 137, 151, 153, 157. M Mair V. Kerr, 76. Marvin v. Hiil^^s, 124, Meyrick, Re, 80. Mitchell V Greenwood, 111. Moffatt V. Bank, of Upper Canada, :j, 32. Mtmro V. (Iriiy, 93, 96, 10i>. Montgomery v. Gore Dist. Mutual luH. Co., 44. Moore V. Hynen, 41, 42. '' Morgan v. Quesnel, 98. ' ' Moiilton V. Edmonds, 4. ' Myers v. Brown, y6. Me. McDonald v Hamilton 98, 99. do McDonald, 34. do McMillan, 107. do Robilard, 10t>. McDonell v. McDonald, 98, 99 110. McDonell v. McDonell, 111, lU. .Mclntyre v. G. \V R. Co.. 109. McLean v. Manahan, 15. MrMa.stcr v. Anderson, 32. do Morrison. 5fl. McMillan v. McDonald, 107. McPlmdden v. Bacon, 11. Crme v. Wright, 85. Otter V. Ld. Vaiix, 86. ' • I'nlmcr, Re, 141, 157. Patterson v. Todd, 1 12. Payne v. Goodyear, 1 09. Peck v. Monro, 89. Pendleton v. Booth, 33. PliippK v. Moore, 45. Popham V. Exham, 86. R. Retd V. Whitehead, 10, 17. 2«, 27, 2*. Richmond v. Evans, 85. Kidoiitv. Ketchum, 93. 106. Robertson v. Morris, 86. Robinson v. Byers, 10. Robt:on v. Waddell. Ifi, 25. Rodham v. Morley, 33. Russell V. Eraser, 122. S. Nickson, 50. Scott Shaw v. Shaw, 117 Shepherd v. Heyball, 159. INDEX. IX BkipwithT. Shirley, 127. Slancy v. Wade, 126. Slater v, Fisken, TT. Btacpoole v. Stacpoole, 63. Stafford v. Williams, 100. Stansficld v. Hobson, 38. Stevens v. Quppy, 60, 66. Stuhbs V. Sargon, 4. Sutherland v. Dickson, 76. Street v. Kent, fe9. do Lambton, 89. do Himcoe, 89. " ■ 'Sm ■ Taylor V. Foster, 110. Thompson v. Watts, 8. Thorpe, Re, 11. Todd V. Werry, 98, 106. Tomlinson t. Hill 47. Townsend v. Elliott. 98, Tuthill V. Rogers, 60. ir. Webb V. Lymington, 120. Whatcly v. Whately, 67. White V. Wakefield, 5. Williams v. Taylor, 93, 103. Wishart v. Cook, 56. Wright V. Codogan, 71. do Englcfield, 71. do Re, 142, 151. Yeo V Field, 121. Young V. Elliott, 54, 67. EDITIONS OF WORKS llEFERRED TO. i it. Atkinson on Titles, 1837. Bissctt on Estates, 1842. Blackwoll on Tax Titles, 2nd Ed. 1864. Bythewood's Conveyancing, 3rd Ed. 1841. Coke on Littleton, 18th Ed. 3823. Coventry's Conveyancers' Evi- dence, 1832. Darby on Limitations, 1867. Dart on Vendors, 3d Ed. 1856. Dixon on Title Deeds, 1826. Draper on Dower, 1863. Hayes Conveyancing, 5th Ed. 1840 Hubback on Succession, 1844. Lee on Abstracts, 1843. Leith's Real Property Stats., 1869. Lovelass on Wills, 12th Ed. 1838. Parke oxi Dower, 1836. Piatt on Covenants, 1829. PresV)" on Abstracts, 3rd Ed. 1819. Sugden on Vendors and Purcha- i sers, 14th Ed., 1862. I Taylor on Evidence, 5th Ed. 1868. i Taylor's Chancery Orders, 3d. Ed. '■ 1868. ."I I I Hi. n\ 1 CHAPTER I. INTRODUCTION. The safety of a purchaser requires that the title should be examined for him with the most scrupulous* oare by a person skilled in the laws relating to real property, and possessed of experience in the investi- gation of titles ; and the solicitor employed should read and scrutinize every part of every document relating to the title he examines. The evidrnce of the title, he is entitled and bound lo demand, is always written ; consisting either of origi- nal legal instruments, or of statements and proofs reduced to writing.* He is to remember that though his client may be a willing purchase^, yet. that when he or his heirs wish to sell or mortgage complete wrilten 'evidence may be required of him, and if then obtainable at all,. must be procured by his client at his own expense. All the evidence and not merely the deeds, should, therefore,, be carefully preserved. The possession of the property, ana not merely the paper title, should be inquired into. This is a cardinal point, and yet is often neglected. If the possession has always gone with the title claiuied by the vendor, K e i «' I t »• »\ 1. .'«e on Abs. I, 2 ^ INTRODUCTION. it aflbrds a presumption in favour of the title ; and the deeds, &c., under which it is derived, may be assumed to be genuine (unless something suspicious appears on their face). If the possession has not always gone with the title, satisfactory evidence of the reason cannot safely be dispensed with. , r , - .. If a certificate of title or chancery deed has been obtained under the Act for Quieting Titles,^ the inves- tigation has only to be from the date of such certificate or deed, the same being made by the Act,^ " conclusive at law and in equity;" and it is declared that "the title therein mentioned shall be deemed absolute and indefeasible, from the day of the date of the certificate, as regards Her Majesty and all persons whatever, sub- ject only to any charges or incumbrances, exceptions or qualifications mentioned therein, or in the schedule thereto.'' If no certificate or deed has ever been obtained under the Act, the investigation should go back to the Crown Grant. In England, if a vendor shows a title for sixty years, accompanied by actual possession for that period, that is generally sufficient for a purchaser, but the reasons for this rule do not appear to apply to this country. The Grant itself, or an exemplification or certified copy, should be read, and not merely the memorandum thereof in the Registry Office. It may be observed here that old Patents contained certain conditions which have since been dispensed with by the Public Land Act of I860,* which contains the following enactment — *' With a view to remove doubts, and to quiet the titles to certain lands heretofore granted, it is enacted, that 2. 2» Vic. C. 26. & Sec. 80. 4. 23 vie. c. 2, 8. a. INTRODUCTION. O the non-observance and non-fulfilment of the condition imposed in and by certain patents issued for public lands, of taking the oaths which may have been hereto- fore prescribed, in case of any subsequent sale, con- veyance, Jnfeoffment or exchange, by the patentee, or of recording such oaths, within twelve months after having taken possession, in the office of the Secretary of the Province, or of performing certain settlement duties, shall not affect in any way the patent or title of any patentee, or of any subsequent purchaser or pro- prietor." The title from the grantee cf the Crown may depend on deeds, wills, inheritance, &c. ; and if a perfect title is in this way established, searches must be made as lo crown debts. Sheriff's sales, executions, taxes, tax sales, and the Statutory liens of Mutual Insurance Companies, &c., before the title is accepted. As to the deeds, if they come from the proper custody, and there is nothing suspicious about them, their due execution, according to their purport, may be asjsumed without proof. ^ If they are in the possession of third persons, inquiries should be made of the holders, respecting the nature of their in.:erest, care being taken to inform them of the pending contract of purchase.^ Similar inquiries should be made of tenants, and per- sons in possession ; and the leases they have should be inspected in order to ascertain whether there are any unusual terms by which the purchaser would be bound. ^ If any of the deeds are not produced, the vendor must give satisfactory evidence of their loss and con- tents. 6. Gov. Con. Ev. 18, 19, 41. e. Ibid, 6 ; and see MoS^tt v. Bank of Upper Canada, S Qrant, 874. r. 1 Bytb. Con. 101. I *» INTRODUCTION. The loss of any of the title deeds, whether old or recent, is not necessarily fatal to the title, ^ but in this country, where copies of deeds were seldom made or kept before it became necessary to register deeds io full, and where abstracts, in the proper sense of that term in conveyancing, are seldom made, the loss of a deed may be fatal as between vendor and vendee. In Lord St. Leonard's work on Vendors and Pur- chasers,^ he says, — " The loss of the deeds may not be fatal to the title if the vendor can deliver over copies which would be evidence at law. But if ihe title deeds are lost, the seller must furnish the purchaser with the means of showing what were the contents of the deeds, and of proving that they were duly executed." The course taken by ibe Master of the Rolls in Bryant v. Busk^ seems to imply that he considered an abstract prepared from the deed might afford sufficient knowledge of the contents of the missing deed ; but it is very doubtful whether in the case of deeds not sixty years old anything short of a copy, or an abstract (in the proper sense of the word as used by English Con- veyancers) will do, unless the purchaser chooses to be satisfied with less evidence. ^ To let in evidence of a copy, or other secondary evidence of a deed, strict proof of the loss, or destruction of the deed is an essential preliminary. An affidavit of the vendor himself is not sufficient for this purpose. ^ The evidence must be at least such as would be neces- sary to let in secondary evidence on a trial at law, or hearing in* equity.* As to the contents, it should be observed that the 8. Moulton V. Edmonds, 1 D. F. & J. S50. 9. Sugf. v. & P. 437, 433. 1. 4 KU88. 1. 2. Dart en Vendors, 196, 199, 207 ; Sag. V. & P. 438, 433 ; Lee on Ab8. 81S. 8. Sug. V. & P. 437 ; Stubbs v. Sargon, 4 Beav. 90. 4. Taylor on Evid. see 308, et leq ; Leith's Real Prop. Stat 427. I ['■' INTRODUCTION. ^6 memorial of a registered deed, unless it contains the deed verbatim, (which before the act of ISBS,*^ it very seldom did,) is not alone sufficient evidence of the con- tents, as the law required in memorials, only the date of the instrument, the names and additions of the parties to it, the names and additions of the witnesses, and their places of abode ; the lands contained in it, and the City, Town, Township or place in the County or Riding, where the lands are situate in the manner in •which the same are described in the instrument or to the like effect ;^ and the deed may therefore have con- tained important particulars not noticed in the memorial, such as a proviso for redemption, a trust, various excep- tions and qualifications, &c., &c. The deeds being produced, the following are some of the points to be carefully observed in ordinary cases. (1) Are the parcels correctly described in every deed ? (2) Are the operative words in each deed sufficient ? Do they profess to convey to the grantee and his heirs ? (3) Does the deed contain all the usual covenants, and no others ? Do the covenants make any exception as lo incumbrances or the like ? Anything unusual in the covenants, or the omission of usual covenants, calls for inquiry and consideration as to the cause of it. (4) Is there a duly signed receipt for the purchase money, on the back or on the margin of every deed ? A distinct recital in a deed that the consideration money has been paid, is, as between grantor and third parties equivalent to an endorsed receipt,''' though the ordinary receipt in the body of the deed is not. 6. 29 Vic, c. 24. 6. Con. Stat. U. C, c. 89, s. 10. Z. 1 Byth. Con. 00 ; 5 Byth. Con. 20 ; and see White v. 'VValtefleld, 7 Sim. 401, e I t X III r } t ■ Iff I 6 INTRODUCTIOW. I'! A deed may be executed before payment of the pur- chase money, and the endorsed receipt is not supposed to be signed until the money is paid. In case therefore of deeds executed before the 18th September, 1865, if the consideration has not been paid, the absence of a recital of payment, or of an indorsed receipt is deemed constructive notice of the non-payment to future pur- chasers ;^ and the grantor may have a lien on the pro- perty for the amount due to him. But in regard to deeds executed since 18tli September, 1865, and registered, unpaid purchase money is no lien.^ In the absence of such a receipt, payment of the pur- chase money may be presumed after forty yGars,^ if possession has gone with the deed, but should be proved by other means, if less, than forty years have expired. The lapse of twenty years is not necessarily sufficient, because there may have been an acknowledgment or the like within that period ; and if an acknowledgment should subsequently appear, a future purchaser is bound by it. The vendor should therefore be required to get an acknowledgment from the grantor, or sufficient ether evidence, from which, in connection with the lapse of time, the payment may safely be assumed. (5) Does each deed purport to be duly executed by the grantor personally, or by attorney ? If by attorney, the power of attorney must be produced and examined. If executed prior to the passing of the 29 Vic, cap. 28, (18th September, 1865), evidence is necessary that the author of the power was living at the time the deed was executed. The evidence may be dispensed with in two cases ; (1) If the power of attorney is thirty years old, and possession of the proj)erty has gone according to the 8. Loe on Abs., 418, 471 ; Baldwia v. Duignan, 6 Grant, 60S. 9. 29 Vic, c. 24, s. 66 ; Ont. Stat. 31 Vic, c. 20, a. CS. 1. Daxt or. Vendors, 210. INTRODUCTION. deed for that periou, the presumption may be made, without further evidence, that the appoinlor was living when the deed was executed ^ (2) If the power of attorney was executed after the 18lh September, 1865, its lerms should be considered with reference to the 23rd section of the Property and Trusts Act ;^ which enacts that in case a power of attorney " provides that the same may be exercised in the name and on the behalf of the heirs or devisees, executors or administrators of the person executing the same, or provides by any form of words that the same shall not be revoked by the death of the person executing the same, such provision shall be valid and effectual to all intents and purposes, both at law and in equity, according to the tenor and effect thereof." The power may also be well exercised notwithstand- ing the appointor's death, if the party had no notice of the death when the deed was executed and the trans- action completed ;* but a purchaser is not bound to accept a litle depending upon a former owner's appear- ing to have had no notice of what would otherwise invalidate the title. (6) Has the wife of every former owner duly barred her dower? Prior to the 11th of May, 1839, it was necessary^ to render a bar of dower by the grantor's wife effectual, that she should be examined touching her consent to bar her dower, and that a certificate of such examination should be endorsed upon the deed. Since the lllh May, 1839, a wife joining with her husband in a deed or conveyance containing a release of dower is sufficient without any examination or ac- e X I t l! Li r n 7 ■ 2. Gov. Con. Ev. 37. 3. 29 Vic, c 28. 4. Ibid, sec. 24. 6. 37 Geo 3, c. 7 ; 48 Geo. 3, c. 7 ; 50 Geo. 3, c. 10. I — *» 8 INTRODITCTIOX. knowledgmenl.^ But when a woman bars her dower by a deed to which her husband is not a party, it is still necessary for her to be examined, and to have a certificate of the examination endorsed on the deed.'' If there is any deed in which the grantor's wife does not join, evidence should be obtained that the grantor was unmarried at the time, or that his wife is since dead, or that for some reason she is not entitled to dower. 8 Where one of the grantors in any deed is a married woman, care must be taken to see that a proper certifi- cate of her having executed the deed, and of her exam- ination before a Judge or two Justices of the Peace is endorsed, that it is correct in form, and shews that the examinaiion was taken on the day of the execution of the deed.J* If the deed is executed in Great Britain or Ireland, or in any colony belonging to the Crown of Great Britain other than Upper Canada, the execution of the deed must be in the presence of, and the examina- tion taken before the Mayor or Chief Magistrate of a City, Borough or Town Corporate in Great Britain and Ireland, or the Chief Justice or Judge of the Supreme Court of the Colony ;- if executed in a foreign country, then before the governor or chief executive officer of the state or country, or in presence of a British Consul, or of a Judge of a Court of Record of such state or country.^ By the statute ^ all deeds executed by a married wo- man before the 21st day of May, 1859, are declared valid, although the certificate of execution and examina- 6. 2 Vic, c. 0, 8, 3 ; Con. Stat. U. C. c. 84, s. 4 ; and see Heward v. Scott, 2 Chan. Cham. R 274. 7. Con. Stat. U. C. c. 84, ss. 0, 7, 8, 9. 8. Dyke v. Randall, 2 D. M. & G. 209 ; Thompson v. Watts, 2 J. & II. 291. 9. Con. Stat. U.C. c. 85, s. 2, 1. Ibid, 8 3. 2. Ibid, 8, 4. 3. Ibid, 88. 11, 12, 13. INTRODUCTION. 9 tion was given on a day subsequent to the <' ty on which the deed was executed ; or the certificate is of Ihe wo- man's consent to be barred of her dower, instead of her consent to convey ; or although the certificate is not in strict conformity with the forms prescribed by the act ; subject however, to a proviso,* that this should not ren- der valid any conveyance from a married woman, which was not executed in good faith, nor prejudice any title which had been acquired from the married woman, sub- sequent to the defective conveyance. When the deed is executed by more than one married woman, the examination and names of all or any num- ber of them may now be included in one certificate. ^^ It is necessary that the husband should join in the deed, and his merely signing and sealing is not sufficient, he must be named as a party to it.'^ (7) Have all mortgages been duly discharged? The fact that a mortgage previously existing appears to have been discharged by a certificate under the statute, does not relieve the purchaser's solicitor from the responsibility of examining the certificate of dis- charge. The statute''^ gi""ing such a certificate the effect of a reconveyance, rendered it imperative, that it should be in the form prescribed by the act, and duly proved by the o.ith of a subscribing witness. The form given in the act showed that two witnesses were necessary to its due execution, and the Registry Act of 1865,^ ex- pressly required two witnesses, but the subsequent act • of 1867,5^ declares that one witness shall be sufficient. 4. Ibid, s- 14. 6. Ont. Stat. 32 Vic. e. 9,s, 2. 6. Doe d. Bradt v. Hodgkins, 2 U. C. Jur. 213 ; Foster v. Beal, 15 Grant, 244,, 7. 9 Vic c. 31, 8, 23 ; Con. Stat. U. C. c. 89, s, 57- 8. 29 Vic i«; 24, 8. -68. .«. Ont Stat, 31. Vic. c. 20, a. 60. I i r * i I i ■ - 10 INTRODUCTION Since the 18lh September, 1865, it is not imperative tliat the certificate shall follow exactly the form pre- scribed, the words *' or to the like effect," being usbd.^ The statute^ further provided that upon such a cer- tificate being presenled to the Registrar of the county, he may write the word " discharged " and affix his name in the margin of. the register, wherein the mortgage has been registered, and the same shall be deemed a discharge thereof; and such certificate shall be filed and numbered, and entered in the margin of the register, under, the word discharged. By the Registry Acts of 1865,'' and 1867,* the Registrar is to register the certificate at full length in its proper order, and number it like other instruments, and he is to make, in a prescribed form, and sign an entry in the margin of the register, wherein the mortgage is regis- tered. To make the certificate effectual as a reconveyance, it would appear that all these requirements must be strictly complied with, for the words of the Statute are, " such certificate so registered shall be as valid and effectual in law as a release of such mortgage, and as a conveyance to the mortgagor, his heirs, executors, ad- ministrators or assigns, or any person lawfully claiming by through or under him or them, of the original estate of ihe mortgagor."^ Although the executor or administrator of a deceased mortgagee may discharge a mortgage under the statute, which will have the effect of a reconveyance, he cannot sell or assign the legal estate in the land.^ 1. 29 Vic. c. 24, 8. 58 ; Ont. Stat. 31 Vic. c. 20, s. 60. 2. Con Stot. U. C. c. 89, s 58. 8. 29 Vic. c. 24, 8. 53. 4. Ont. Stet. 31 Vic. c. 20, 8. CO. 6. Con. Stat. U.C. c. 89, s, 60 ; 29 Vic. o. 24, s. 68 ; Qnt.Stat. 81 Vic. o. 20, s. 60. . Robinson v. Byers, 9 Grant 572. INTRODUCTIOIf, 11 A discharge execnlod by ono of several cxcculors is not a valid discharge, all should join.'^ A foreign admin- istrator cannot give an ellectual discharge, to do so lie must first take out k-ttcrs of administration in this Pro- vince. ^ In the examination of the various documents produced as evidence of a title, the most scrupulous care is re- quisite on the part of tiie purchaser's solicitor. The remarks of Mr. Dart in his work on vendors, as to Ihe duty of a solicitor in examining the abstract with the deeds are well deserving of attention. He says : — " The object of the examination is to ascertain, 1st, that what has been abstracted is correctly abstracted ; 2ndly, that whet is omitted is clearly immaterial ; 3rdly, that the docu- ments are perfect as respects execution, attestation, indorsed receipts, registration, stamps, &c. ; and 4lh]y, that there are no indorsed notices, nor any circumstances attending the mode of execution, attestation, &c., &c., calculated to excite suspicion. Anythtng out of the ordinary course — such as the unusual position of the indorsed receipt — should be made the subject of inquiry. Every part of every document ought to be read through ; notice of an incumbrance is equally notice whether contained in one or another part of a deed ; and if an important point be overlooked, the purchaser, after the conveyance is executed and the purchase money is paid, will have no remedy against the vendor unless it falls within the covenants for title ; and this apparently, al- though the abstract may have been incorrect ; perhaps few of the most important duties of a solicitor are so frequently performed in a perfunctory manner."® The case of Kennedy v. Green, ^ is an important case 7. MacPhadden v. Bacon, 13 Grant, 691. 8. Re Thorpe, 15 Grant, 76. 9. Dart on Vendors, 273. 1.'8M.&K.699. 13 INTRODUCIIOV. on the subject of suspicious circumstances amounting 1o notice ; and there it was held that, "whatever is notice enougi) to excite attention, and put the party on his guard, and call for enquiry, is also notice of everything to which it is afterwards found that such enquiry might have led, although all was unknown for want of the investigation." In that case, the Lord Chancellor said : — " The contents •of the instrument itself were perhaps calculated to rouse suspicion, and prompt enquiry. But the back of the deed was checkered nil over with suspicious appear- ances. The title of the deed, not m the engrossing hand, but writteii in a somewhat slovenly way, and with the words of the title of different sizes, beget a suspicion of hurry and imperfection in the preparation of the instru- ment. When does a stationer ever send such a blank indenture out of his office, unless when pressed for singular dispatch. Then the receipt written across one fold into a second square sideways, and the signature in the like manner running into the second square. But, above all, the receipt removed far from the top, and "eaving such a space as might by the holder of the deed, supposing that space to have been left in blank, have been filled up in any manner he chose. This was at once a circumstance to excite the greatest, the most jealous suspicion, ♦ * * * every unusual circum- stance is a ground of suspicion, and prescribes enquiry ; and T hold the receipt written here in a way to enable any person to commit a gross fraud — a way for that Teason never adopted — was abundant grounds for sus- picion, and demanded inquiry and explanation. When to this we add the further unusual circumstance of the party's name being written on the square below, and with a fold between it and the receipt, so that it was >most probably written when the receipt was folded down, ..assuredly no one can hesitate in pronouncing that who- I liiii INTRODUCTIOX. 13 ever, especially a man of business, looked at the d»^ed, miibt have conceived such suspicions as to call for inquiry » In considering the evidence adduced in support of any title, the practice of good conveyancers is more strict than that of courts of justice, in weighing the sulficiency of evidence; but in determining its admissibility more lax.^ That they should be more strict in weighing the sufficiency of evidence seems to be an eft'ect of the difl'erence in the position of the parties ; that they deter- mine with less strictness as to ils admissibility seems to result from the difference in the powers and functions of those by whom the evidence is to be judged. The rule applies generally to presumptions of fact, which conveyancers are slower in raising than Courts of Justice. Thus a seven years' absence without tidings, though it prevails as evidence of death in ejectment, is clearly insufficient as between vendor an ' purchaser. ^ Besides the greater difficulty of retracing an erroneous step, there exists another cause of difference from forensic practice, in the more extensive office of conveyancer's evidence, v/hich is to afford reasonable satisfaction to the purchaser that the title is good agirinst all the world, and not merely like that of evidence in litigation, that it is sufficient to prevail against certain contending parties.* Again, conveyancer's evidence is necessarily for the most part exparte. A vendor may therefore be required to furnish evidence which would be elicited by adverse proceedings, to prove or disprove facts which, if he were a party litigant, it would be the business of his opponent to negative or establish. It may be laid down as a general rule, that a pur- t HubbackonSuc.63. 3. Dart on Vendors, 22£. 4, Hubback on Sue , 03. It ij 14 INTRODUCTION. chaser can in strictness, require evidence of all facts material to the title from the date at which its regular deducticn commences, whether such facts are to be used as positive or negative proofs ; that is, proof of all facts whose existence must be either proved or assumed in ordei: to establish affirmatively the vendor^s title, e, g. the heirship of a vendor who claims by descent, and of all facts whose existence must be either praved or assumed, in order to establish such title merely by dis- placing ihe known or presumptive title of others ; as the failure, determination, or release of some prior estate or incumbrance, whose existence is either known or may be presumed, as between vendor and purchaser. So also he may require a satisfactory explanation of matters which tend to impeach the validity of the ab- stracted instruments.^ Bnf a purchaser cannot compel the vendor to procure evidence for the purpose of nega- tiving mere possibilities, altnough he may require him to answer, to the best of his knovirledge, any relevant questions on the subject, and to furnish all evidence in hi« uossession or power. ^ 6. Dart on Vendors, 219. ii 22 REGISTBATIOX. The provisions of these two Acts, as to the mode of registration, and the effect of registering, or omitting to register, are exactly the same, and are as follows : — " After'' any grant from the Crown of lands in Ontario, and Letters Patent issued therefor, every instrument affecting the lands or any part thereof comprised in such grant, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valu- able consideration, unless such instrument is registered in the manner herein directed before the registering of the instrument under which such subsequent purchaser or mortgagee may claim." " AU^ wills, or the probates thereof, registered within the space of twelve months next after the death of the devisor, testator, or testatrix, shall be as valid and effectual against subsequent purchasers and mortgagees, as if the same had registered immediately after such death ; and in case the devisee or person interested in the lands devised in any such will, is disabled from registering the same within the said time by reason of the contesting of such will or by any other inevitable difficulty without his or her wilful neglect or default, then the registration of the same within the space of twelve months next after his or her attainment of such will or probate thereof, or the removal of the impedi- ment aforesaid, shall be a sufficient registration within the meaning of this Act." "The'' registry of any instrument, under this Act, or any former Act, shall in equity, constitute notice of such instrument, to all persons claiming any interest in such lands subsequent to such registry." f " Priority® of registration shall in all cases prevail, (unless before such prior registration there shall have 6. 29 Vic. c. 24, 8. 62 ; Ont. Stat. 81 Vic. c 20, s. 64. 6. 29 Vic. c. 24, 8. 63 ; Ont. Stat. 31 Vic. c. 20, s. 65. 7. 29 Vic. c. 24, 8. 64 ; Ont. Stat. 31 Vic. c. 20, 8. 66. 8. 29 Vic, c 24, 8. 65 ; Ont. Stat. 81 Vic. crfO, ST. £6 \\\\\v SEOISTRAnON. 23 Cbeen actual notice of the prior instrument by the- party claiming under the prior registration." "No^ equitable lien, charge, or interest, affecting land shall be deemed valid in any Court in this Pro- vince after this Act shall come into operation, or against a registered instrument executed by the same party, his heirs or assigns ; and tacking shall not be allowed in any case to prevail against the provisions of this Act." Before patent from the Crown, the only instruments which can be registered in the County Registry Office, are those w^hich create a mortgage lien or incumbrance upon the land.^ The registration of these instruments is effected under the Consolidated Statutes of Upper Canada, c. 80, s. 24. Since the 18th September, 1865,2 grants from the Crown are registered by producing the original to the Registrar, and filing with him a true copy sworn to by any person who has compared it with the original. All other instruments except wills, are registered by the de- posit of the original instrument, or by the deposit of a duplicate. Wills^ are to be registered at full length by the pro- duction of the original will and the 'deposit of a copy, with an affidavit sworn to by one of the wit'xesses to the will proving the due execution thereof by the testator, or by production of probate, or letters of administration with the will annexed, under the seal of any Court in this Province, or in Great Britain or Ireland, or in any Brit- ish Province, Colony or Possession, having jurisdiction therein ; and by the deposit of a copy of such probate or letters of administration, with an affidavit verifying such copy. 9. 29 Vic. c. 24, s. 68 ; Ont. Stat. 31 Vic. -. 20, s. 68, 1. Holland v. Moore, 12 Grant, 296. 2. 29 Vic. c. 24, a. 85 ; Ont. Stat. 31 Vic. o. 20, s. 34. t fit. 8, 29 Vic. c. 24, s. Ont. Stat 31 Vic. c.20, s. 86. u KEOISTRATIOW. Prior to 1846, all that was required for registration iKras, that the memorial should be in writing, and in the case of deeds, under the hand and seal of the grantor, or of one of the grantors if more than one, o • of some or one of the grantees, his or their heirs, executors or adminis- trators, guardians or trustees, attested by two witnesses, one of whom was one of the witnesses to the execution of the deed, and who was required to prove upon his oath, the due execution of the deed or conveyance, and of the memorial.* Wills were registered, upon produc- tion of a memorial, under the hand and seal of some or one of the devisees, his or their heirs, executors or ad- ministrators, guardians or trustees, attested by two witnesses, by one of whom the due execution of the memorial was proved upon oath. The statute^ required the memorial to contain the day of the month and the year when such deed, conveyance or will bears date, and the names and additions of all the parties to such deed, conveyance or will, or the devi- sor or testatrix of such will, and of all the witnesses to such deed, will or conveyance, and the places of their abode, and to express or mention the lands, tenements or hereditaments contained in such deed, will or con- veyance, and the names of all the Townships or Parishes within the said County or Counties, Riding or Ridings^ where any such lands, tenements, hereditament or here- ditaments are lying or being that are given, granted, conveyed, devised or any way affected or charged by any such deed, will or conveyance, in such manner as the same are expressed or mentioned in such deed, will or conveyance, or to the same effect. By the 9 Vic. c. 34,^ a further requisite was introduced, viz : that the witness who proved the execution of the 4. 35 Geo. 3. c. 6. s. 4. 6. 35 Geo. 3, c. 5, s. 5 ; Con. Stat. U. 0. c. «. CCA Stat. U. C. c. 89. s. 23. », a. 19. BfiOISTRATION. 15 deed, conveyance or will, should also depose " to the place where the same was executed ;. " and this is still an essential requisite in the affidavit of the attesting wit- ness. ^ To a perfect registration it is essential, that all the re- quirements of the act should be complied with. In Robson v. Waddell,^ the objection being taken, that in the memorial the addition of the witness to the deed was not given, though his name and place of abode were stated. Draper, C. J., in delivering the judgment of the Court said, " among the directions of the Act is one, that every memorial shall contain the names and additions of the witnesses to the deed and the places of their abode. It is enough to insert the names and additions of the par- ties to the deed, in the same manner or words as they are set forth therein ; but with regard to the subscribing wit- nesses, their names and additions, and places of abode (though the two latter are rarely if ever in this country mentioned in the attestation) must be set forth in the mem- orial. The place of abode of a witness, when, as in the present case, his identity was established on his own oath at the trial, may be deemed unimportant ; but it is one of the things which the statute requires, and the Courts neither cau nor should endeavour to dispense with it> though in this particular instance, and even generally, they may think it of little value." " We may think the objection to be strictly literal and technical, and may r. *et an omission such as has been made, which has not, and scarcely could under all the circumstances have operated to the prejudice of the sub- sequent mortgagee : that in fact it may have been rather to a search after objections, than for notice or information that the discovery of this defect is owing ; but we canno t see in all this a sufficient reason for disregarding the lan- 7. 29 Vlo. 0. 24, 8. 39 ; Ont. Stat. 31 Vic. o. 20, 8. 38. 8. 24 Q. B. U. C. 674. e SI Ml a ^n if RKGISTRATIOW. guagp of the Act. Our judgment therefore must be founded upon the statute. We are bound to hold thai this non-compliance with one of its express requirements makes the prior deed fraudulent and void as against the subsequent mortgagee." In another case,^ where the objection was, that in the memorial the place of abode of the witness was given as, " of London," although the objection was overruled, the description being held a sufficient compliance with the Act, Esten, V. C, said, " It is undoubtedly essential that the requirements of the Registry Acts should 'be strictly observed, and any material failure in that respect will vitiate the registration." The descf iption of the parties as, *' of the City of Lon- don," without adding" in the Province of Canada," was, in the same case, held suffic :nt. To the affidavit of exe ;uf;on two objections seem to have been taken, the one, that the witness merely stated therein, that he had " seen the due execution of the deed ; " the other, tha- the place of execution was not mentioned. With reference to these objections V. C. Esten said, " If the matter had been res integra I should be strongly disposed to think that it was not sufficient for the affidavit to state that the witness had " seen the due execution of the deed " I should have thought that it should describe the act performed, as in an ordinary affidavit of execution so as to enable the Registrar to judge of its sufficiency. But in this respect the affidavit follows the form prescribed by the Act of Parliament — it is probably a form commonly used — the affidavit is not the act of the party but of a witness, and it is a matter transacted between the witness and the Registrar, not intended for the information of the public, but for the satisfaction of the Registrar. It would be perhaps not 9. Reict V. Whitehead, 10 Grant, 448. I I REGISTRATION. IT too much to hold that all the provisions respecting the proof are directory. The mention of the place of execu- tion is, I think, intended to enable the Registrar tojudge of the nature of the proof required in that particular case, and which is diflferent according as the instrument is ex- ecuted in, or out of Upper Canada. The Legislature have not thought it of sufficient importance to require it to be stated in the memorial, although it might afford some clue to the discovery of the instrument, or the de- tection of any fraud connected with it. I do not think that any defects in the affidavits in this case aflcct the validity of the registration to which they relate." Where the deed was registered upon a memorial exe- cuted by the grantee, it was held necessary in order to valid registration, that one of the witnesses to the memo- rial, should also be one of the witnesses to the execution of the deed by the grantor. ^ It is no objection to the affidavit of execution, that it was taken by one of the subscribing witnesses before the other.2 Whether an affidavit sworn before one of the parties to the instrument would, prior to the 18th Sep- tember, 1865, be objectionable, is undetermined, but since that date it would, the statute^ saying, " none of the persons authorized to take affidavits by this act shall take any affidavit of the execution of any instrument in case he is a party to such instrument." For the registration of a will, it is now essential, where the original will is produced to the Registrar, that the witness making the affidavit should swear to its execu- tion by the testator ;* but prior to these statutes, proof of execution by the testator was required only in the case of wills executed out of Upper Canada. 1. Jack d. Rennick v. Armstrong, 1 Hud, & Brooke, 727. 2. Reid v. Whitehead, 10 Grant, 450. S. 29 Vic. c. 24, s. 45 ; Ont. Stat. 31 Vic c. 20, a. 44. 4. 29 Vic. c. 24, s. 86 ; Ont. Stat. 81 Vic. c. 20, s. 35. 'Si: I 4 g8 REGISTRATION.- / s to the certainty of description of the land intended to be conveyed, in the case of Reid v. Whitehead, al- ready quoted from, where it was objected that the de- scription in the memorial did not sufficiently identify the premises, and the Court held that it did not, the Chan- cellor after quoting the section of the statute which de- clares what a memorial is to contain, said, " 1 take these words to mean that the description of the lands, as con- tained in the instrument, or such description as shall identify or make them known as fully as that description itself, shall be contained in the memorial." " Now what are the lacts here ? The instrument sought to be registered purposes to assign a part of lot 10, in the City of London, as described in a certain inden- ture of mortgage thereto attached and which was not on the registry books The memorial uses precisely the same words, but without showing what were the lands described in the deed referred to. The assignment and the deed taken together show the lands, and for this pur- pose they become incorporated and form one instrument, but the assignment by itself, or the memorial by itself, would not show what lands were assigned, or were affected by the deed assigned ; and the memorial, there, fore has not done its work. It does not mention the land contained in the instrument sought to be registered, for that instrument adopts and incorporates, by reference to another deed, where the description is to be found, and the memorial in order to describe the lands truly, should have gone to that instrument to which it referred, and taken from it tlie description, stating that it had been so taken," and the Court on this ground held the registration void. On appeal, however, the dec.ee of the Court of Chan- cery was reversed.^ ..2E.&A. Rep. 682. REGISTRATION. ^ In delivering the judgment of the Court of Error and Appeal, Vankoughnel, C, said, "Three questions did not sufficiently engage attention there, (i. e. in ihe Court be- low). The first is, whether or not the assignment of the mortgage was in itself a conveyance capable of passing the interest which the mortgagee took under the mortgage in the land conveyed by it. I cannot say it was not. A reference in one deed to a descripiion of land appearing in some other deed or paper, maybe rendered sufficiently cer- tain on the production of the latter. If this cannot be pro- duced the grantee may be unable to make out his title, but this is a risk more or less common to all documents. A party desiring to deal with any portion of the land which may be affected by a description so given, must, I sup- pose, satisfy himself by inquiring what that description does cover, or he will run the risk of it ; as on the other hand the owner of the land may find difficulty in dispos- ing of his property when the description which he gives in a deed relating to a portion of it is not patent or easily ascertained. The second question is, whether the deed being operative, a registration of it by a memorial following the language of the deed is sufficient. I think we must say that it is." Care should be taken to see that the affidavit of execu- tion is sworn before a person qualified to administer the oath. Before 1818, there seems to have been no p'-ovision for proving the execution of deeds executed out of Upper Canada. The Act® provided only for proof of execution being made, by an oath before the Registrar, or his De- puty, or by affidavit sworn before one of the Judges of the Court of King^s Bench, or before a Commissioner authorized to take affidavits in that Court. An Act'' passed in 1818, provided for proof of the ex- 8. 86 Geo. 3, o. 6, m. 4, U. ?. M a«o. S, 8. 30 BEOISTRATION. eculion of deeds in Grea' Britain or Ireland, or in any Colony belonging to the Crown of Great Britain, being given by affidavit sworn before the Mayor or Chief Magistrate of any City, Borough or Town Corporate in Great Britain or Ireland, or before the Chief Justice or Judge c.f the Supreme Court of any Colony. Another section^ of the same Act, allowed the execution of deeds to be proved before the Justices in Quarter Sessions as- sembled, in cases where the witnesses were dead. The 9 Vic. c. 34, made further provision for the proof of deeds ext cuted abroad, by affidavit, sworn in Lower Canada, before the Chief Justice or Judge of any Court of Queen's Bench, and before the Mayor of any City, Borough or Town Corporate in any foreign country, or before any Consul or Vice- Consul of Her Majesty, resi- dent therein. By the 12 Vic. c. 77, the Chief Justice and Judges of the Court of Queen's Bench were empowered to appoint Commissioners in Lower Canada for taking affidavits in any Court of Law of Record in Upper Canada, and the Act^ made affidavits oi the execution of deeds sworn before such Commissioners, sufficient evidence upon which to register the memorial. In addition to the persons specified above as quali- fied to take affidavits for registration purposes, affida- vits of execution may now^ be sworn, in Great Britain or Ireland, before a Judge of any of the Superior Courts of Law or Equity ; or the Judge of any County Court ; or before a Commissioner appointed for taking affidavits in the Canadian Courts j^ or a Commissioner appointed by the Lord Chancellor to administer oaths in Chancery in England;^ or before a Notary Public, certified under his hand and official seal.* 8. Sec. 3. 0. Sec. 2. 1. 20 Vic 0. 24, 8. 42 ; Ont, SUt. .n Vio. c. 20, s 41. * ' 2. 2fiVlc.c.. 41,88. 8,6. 8. lbi«?. 4. Ibid. f"'^' REGISTRATION. 31 ^,.'.i- in Lower Canada, before . Judge, or Prothonotary of the Superior Court, or Clerk of the Circuit Court.^ If executed in any British Colony or possession the affidavit may now be also sworn, before any Judge of a Court of Record ; or before any Notary Public ; and in the British possessions in India, before any Magistrate or Collector, certified under the hand of the Governor to be such ; and in foreign countries before ary Judge of a Court of Record. It would seem to be necessary, that the person before whom the affidavit is sworn, should add to his signature the addition, " Commissionier," or other designation, showing the character in which the affidavit was taken before him.^ Purchasers are now, hov/ever, protected from danger •n consequence of many slips and errors which would, i.'iil recently, have vitiated the registration, by the pro- \ -^i IS of the recent Registry Acts,^ that no past regis- tr iu >n is to be void, " by reason of any clerical error or omission of a formal or technical character." 6. 20 Vic. c. 24, 8. 42 ; Ont. Stat. 31 Vic. c. 20, s. 41. 6. Babcocli v. Municipal Council of Bedford, 8 C. P. U. C. 627. 7. 29 Vic. 0. 24, a. 78 ; Ont. Stat. 31 Vic c. 20, s. 80. P. i« CHAPTER III. INCUMBRANCES. 1. Mortgages, Vendors^ Liens. If the purchaser is taking the land subject to any charges or liens which are not to be paid off out of the purchase money, inquiry should always be made of the persons appearing entitled thereto, as to their exact na- ture and amount ; care being taken to inform them of the pending contract for purchase ; for without such intima- tion the inquiry will be unavailing as against the persons claiming the charge or lien.^ A mortgage, although on its face made to securo pay- ment of a specific amount, may be proved by parol evi- dence to be for a runuing account, and intended as a continuing security. In McMaster v. Anderson, ^ a mortgage having been given by Anderson to the plaintiff, for £125, payable at a certain time, the mortgagor afterwards sold the equity of redemption to Nigh, at the same time showing him a receipt in full for all indebtedness, signed by the plaintiff and dated subsequent to the mortgage. On a bill being filed for foreclosure after the mortgagor's death, V. C. Spragge admitted parol evidence to show that the mortgage, although given for a specific sum, was in fact intended as a continuing security for the mortgagor's in- debtedness from time to time, not exceeding £125, and said, " I think that Nigh can stand in no better position than Anderson. It was his duty to have inquired of the mortgagee." 8. Gov. Con. Ev. 6 ; Moffatt V. Bank of Upper C«n«l&, 6 anmt, 874. 9. MB. 22nd Mii,y, 18«6. I m\\ INCUMBRANCES. SB The lien which a vendor had prior to the recent Re- gistry Act, for unpaid purchase money, bound the land for twenty years, though only six years arrears of interest could be recovered. A purchaser without notice of the lien, who has got the legal estate, and registered his deed, can hold the land discharged from the lien ; but if he had, before he paid his purchase money and obtained his conveyance, notice of the lien, the estate will be charged in his hands. As a general rule, every suspicious circumstance which would put a cautious man upon his guard and suggest inquiry, will be deemed notice. If, therefore, there is any thing suspicious about any of the deeds, as for example, if, in the case of a deed executed before the 18th day of September, 1865, the endorsed receipt fof the purchase money is wanting, or is unsigned, proof of payment of the purchase money should always be called for; the absence of such a receipt being constructive notice to a purchaser that the purchase money is unpaid.^ It is clear the lapse of even twenty years is not suffi- cient to raise the presumption of payment, because Ihero may have been an acknowledgment of the debt ; and if an acknowledgment should subsequently appear, a future purchaser will be bound by it.^ After forty years, however, if possession has gone with the deed, payment may be presumed. In the case of deeds executed since the 18th Septem- ber, 1865, unpaid purchase money forms no lien on the land. The recent Registry Act providing that^ " noequitfeible lien, charge, or interest affecting land shall be deemed 1. Baldwin v Duignan, 6 Grant, 595 ; Lee on Abs. 418, 471. a. Ball V Ld. Riversdale, Beat. 550 ; StausfleM v. Hobson, 18 Beav. 236 ; 3 D. M. fc R. 620 ; Rodham v. Morloy, 1 D.& G. 1 ; Pendleton v. Booth, 1 Glbb. 36; 1 D. F. & J.81. S. 2» Vio, c. 24. 8. 66; Ont. SUt. 31 Vio. o. 20, 8. 68. 8 e ftli :m i II 34 INCUMBRANCES. valid in any Comt in this Province, after this Act shall ieorae into operation as against a registered instrument executed by the same parly, his heirs or assigns." This Act does not affect any liens created before the iSth of September, 1865. In McDonald v. McDonald,* it was contended that the Act was retrospective, and that a lien existing before the Act, was gone under the abo**e section. In giving judg- tnent, V. C. Mowat said, "It is difficult to believe, and I do not believe, that the Legislature meant to legislate away existing "liens, charges and interests." The lan- guage used is certainly large enough to comprise equita- ble interests existing before the passing of the Act, as well as those arising subsequently ; but a like circum- istance has been held in many cases to be by no means a decisive test of a meaning of a statute, words quite as broad as those in question have been construed as not retrospective. * • • I have examined most of the bases ; and, reading the enactment in question in the light of these cases, and of the various clauses of the statute to which my attention was called, I am of opin- ion that the 66th section has not a retrospective opera- lion." 2. Crown Debts. Before the 15th of August, 1S66, securities and en- gagements to the Crown^ bound the real estate of the idebtors and also of their sureties, from the time when the security to the Crown was given, or when the office or engagement in respect of which the debt was con- tracted was acquired or entered into,^ provided the re- quirements of the statute as to registration were com- plied with. 4. 14 Grant, 188. «. Cor. C*n. Ev. 234 ; Ue on Abi. 8M. Ha INCUMBRANCES. 85 ' By the statute,^ " no deeil, bond, contract or other in- strument, under seal or of record, whereby any debt, obligation or duty is incurred or created to Her Majesty, shall be valid or sufficient to charge or affect any lands or any interest in lands, of the person executing the same or aflected thereby, as against any subsequent purchaser or mortgagee for valuable consideration of the same lands from such person, or against any subsequent regis- tered judgment on the same lands against such person, unless a copy of such deed, bond, contract or other in- strument, certified by the proper officer having the custody of the same had been registered in the office of the Clerk of the Court of Queen's Bench in Toronto, before the execution of the deed, conveyance or agreement of such subsequent purchaser or mortgagee, or the registry of such subsequent judgment." The law has now, however, been altered, and in the case of bonds or other agreements entered into since the 15th August, 1866, "no'^ bond, covenant, or other secu- rity, hereafter to be made or entered into by any person to Her Majesty, her heirs or successors, or to any per- son on behalf of or in trust (or Her Majesty, her heirs or successors, shall bind the real or personal property of such person so making or entering into such bond, cove- nant or other security, to any furither, other or greater extent than if such bond, covenant or other security had been made and entered into between subject and subject of Her Majesty." " The 8 real or personal property of any deftor to Her Majesty, her heirs or successors, or to any person in trust for or on behalf of Her Majesty, her heirs or successors, for any debt hereafter contracted, shall be bound only tO' the same extent, and in the same manner as the real or t X >;■ n a 6. Con. Stat. U. Co. 6, 8. 1. 7. 29 k 30 Vic. c. 43, a. 1. 8. Ibid, Sec. 2. ( ^ft^ ill 36 INCUMBRANCES. personal properly of any debtor where a debt is dne iVom a subject of her Majesty." As this Act applies only to bonds or covenants exe- cuted since its passing, it is unsafe to deal with any person who before that became liable on a Crown bord, until he has procured and produced his quietus, discharg- ing him from all liability to the Crown, ^ or releasing ; he particular lands in question from the operation of fhe bond. The statute 1 provides, that " The Governor in Coun- cil may order that all or any lands bound by such dc ed, bond, contract or other instrument, shall be released from the charge created thereby, and upon the production of such order certified by the President or Clerk of the Executive Council, the Clerk of the Court of Queen's Bench shall enter and register the same in the said book as a relea:?e of the lands mentioned in the order, whereupon the lands shall be released accordingly." The search for Crown bonds should be made at the office of the Clerk of the Court of Queen's Bench at Toronto ; but the Inspectors under the Act for Quieting Titles^ have also an alphabetical list of all registered Crown bonds. 3. Executions. Search must in every case be made in the office of the Sheriff of the County to ascertain whether there are in his hands any writs of execution against the lands of the vendor, and a certificate obtained that there are none. To cover the contingency of writs returned by the Sheriff for renewal, the certificate should state net only 9. Gov. Con. Ev. 286. 1. Con. StAt. U. C. c. 5, 8. 3. 2. 29 Vic. c. W. INCUMBRANCES. 37 that there are no executions in his hands at its date, but that there have been none for thirty days previous. The certificate should also state that there has been no sale of tiie lands under executic.i during the preceding six months. Six months is a sufficiently long period to carry bade the search, because the statute^ provides, that " all deeds of lands sold under process issued from any of the Courts of Law or Equity in Ontario, shall be registered within six months after the sale of such lands, otherwise the parties respectively claiming under any of such sales, shall not be deemed to have preserved their priority as against a purchaser in good faith who may have regis- tered his deed prior to the registration of such deed from the Sheriff or other officer." Before the passing of this Act, no time was limited within which a Sheriff's deed required to be registered ; and such a deed, though unregistered, could not be de- feated by any subsequent conveyance made by the party whose lands had been sold by the Sheriff.* Now, however, purchasers are protected against the possibility of any unregistered deeds from Sheriffs being outstanding, as the same statute provides,^ that all deeds for lands sold " under process of Law, before the passing of this Act, shall be registered within one year after the passing of this Act, otherwise the parties respectively claiming under any such sales shall not be deemed to have preserved their priority as against a purchaser in good faith who may have acquired priority of registra- tion." e St. n, 4. Taxes. A certificate from the Treasurer of the County as to 3. 29 Vic. c. 24, s. 50 ; Ont Stat. 31 Vic. c. 20, s. 68. 4. Biimham v Daly, 11 Q B. U. C. 211. 6. 2a Vic. c. 24, s. 67 ; Ont. Stat. 31 Vic. c. 20, s. 69. M: 38 INCUMBRANCES. arrears of taxes, or that there ore none, should always be procured. The cerlificale should »how on its face, that the statement of taxes in arrear for the preceding year has been returned to the County Treasurer by the Township Treasurer^. If it does not show this, then a certificate must be procured from the Township Tr'3asnrer also, in which it should be stated that the Collector's roll has been returned by that officer to the Treasurer.^ If the roll has not been returned, the Collector's receipt for the taxes of the past year will be sufficient ; but the County Treasurer's certificate is required in every case, to show that there are no previous arrears. A search must also be made to ascertain whether there has been any sale of the land for taxes during the preceding eighteen months. This period, over which the search must extend, is fixed, because the Registry Act® provides that every deed made by a SherifT or other officer, for arrears of taxes, must be registered within eighteen months after the sale, otherwise the parties respectively claiming under any such sale, shall not be deemed to I ve preserved their priority as against a purchaser in good faith who may have registered his deed prior to the registration of the deed from such Sheriff or other officer. The Registry Act of 1865 contained^ an exactly similar provision ; but until the passing of that Act, there was no limit to the time within which such a deed required to be registered. Purchasers are now, however, protected against the risk of any unregistered deeds on sales for taxes, executed before the 18th September, 1865, as the Statute^ con- tains the following provision, " all deeds for lands sold 6. 20 & 30 Vic c. 63,8 110. 7 Ibid, sec. 104, 8. Ont. Stat. 31 Vie. c 20, s. 58. 9. 29 Vic. c. 24, 8 56. 1, 29 Vic. c. 24, 8.67 ; Ont Stat. 31 Vic. c 20, s. 69. INCUMBRANCES. 5§ for taxes, or under process of law, before the passing of this Act, shall be registered within one year after the passing of this Act, otherwise the parlies respectively claiming under any such sales shall not be deemed to have preserved their priority as against a purchaser iq good faith who may have acquired priority of regis- tration." 6. Special Improvements. Enquiry must also be made whether the property it liable to any special rate for local improvements, such a rate being made by statute, a charge upon the property benefitted. By the Consolidated Statute^ of Upper Canada relat- ing to Municipal Institutions, the Council of every city could pass by-laws^ for assessing and levying upon the real property to be immediately benefitted by the making, enlarging or prolonging of any sewer, or the opening, widening, prolonging or altering, macadamiz- ing, grading, levelling, paving or planking of any street, lane or alley, public way or place, or of any sidewall^ therein, a special raje sufficient to include a sinking fund, for ihe repayment of debentures, which such Councils were thereby authorized to issue in such cases respect- ively to provide funds for such improvements. To the validity of such a by-law it was not essential, that it should be in accordance with the restrictions and provisions contained in the 223rd section of th(! Act, which regulaled the formalities necessary in by-laws for con- tracting debts by borrowing money or otherwise, or for levying rates for payment of such debts on the rateable property of the municipality. To the validity of such a by law it was, however, n Si V 2. Cap. 54. 8. Ibid, 8 299. sub. sec. 2. n't 40 INCUMllRANCES. necessary,* that it should name a day within the finan- cial year in which it was passed when it was to take efioct ; the whole of the debt and the obligations to be issued therefor, were to be made payable in twenty years at furthest from the day on wliich the by-law took efFect ; also, that it should settle an equal special rate per annum in addition to all other rates to be levied in each year on the real property described therein, and rateable theveunder, for paying the debt and interest and it was necessary that the special rate should be suf- ficient to discharge the debt and interest when payable, irrespective of any future increase in the value of the real property, and also irrespective of any income from the temporary investment of the sinking fund or of any part thereof. The by-law was also required to recite vhe amount of the debt created, and, in general terms, the object for which it was created, the total amount required to be raised annually by special rate for paying the debt and interest ; the value of the whole of the real property rateable under the by-law as ascertained and finally de- termined ; the annual special rate in the dollar^ or per foot frontage, or otherwise, for paying the interest and creating the sinking fund ; and that the debt w^as created on the security of the special rate settled by the by-law, and on that security only. The Municipal Act of 1866^ contains exactly similar provisions to those above mentioned ; and by the Act of the Legislature of Ontario amending the Municipal In- stitutions Act,6 the above provisions are extended to Towns also. The rent which the Councils of Cities, Towns and 4. Ibid, a. 301. 6. 29 & 30 Vic. c. 51, ss. 301, 302, 303. 6. Ont. Stat, 31 Vic. c. 30, s. 35. r INCUMBRAN'CES. 41 fncorporalrd Villages are entitled to cliari^c in respect of properly drained into a common sewer, or which by any by-law is required to be drained into any sneh sewer,'' does not form a tax i p :)n the land, bnt a personal charge upon the owner ;** the authority given by the statute being " lor charging all persons who own or occupy property which is drained, &'j." In Townships,^ on a petition of the rrajorily in num- ber of the resident owner.-* of the property in any part o* the Township, for the draining of the properly being presented, the Municipal Council could, under the Con- solidated Statute, if of opinion that the draining of the locality described would greatly benefit the Township, pass a by-law, ^ providing for the draining of the locality ; for assessing and collecting from the proprietors of the several lands immediately benefited by the draining,. so much of the cost thereof, and of procuring the examina- > tion plans and estimates to be made, and of all other ex- penses incident to the works, as may not exceed the be- nefit which the lands respectively derive from such drain- ing, and in proportion, as nearly as may be," to the bene- fit of each of the proprietors therefrom. The amount so to be assessed or collected would appear to form a charge upon the land, because the Council are further empowered^ to provide by the by- law " for ascertaining and determining, through the En- gineer, what real property will be immediately benefitted by the draining, and the proportions in which the assess- ment should be made on the various portions of the land so benefited." By the Municipal Act of 1866,^ the powers of Town- 7. Con. Stat U. C. c. 61, s. 297, sub. sec. 20 ; 29 & 3j Vic. c. 51, s. 29G, sub. sec. 50. 8. Moore v. Hynes, 22 Q. B. U. C. 107. 9. Con. Stat. U. 0. c. 64, s. 278. 1. Ibid, 279. 2. Ibid, sub. sec. 4. 3. 29 & 30 Vic. c. 51, ss. 281, 282. at 5 ■5 I*' Ik ~ M t' 4^ INCUMBRANCES. ship Counciis are extended to passing by-laws, for, among other things, " the deepening of any siream, creek or water course, or for draining of the properly." There is no doubt that under the provisions of the lat- ter statute, the assessment for any of the above purposes will form a charge upon the property ; the Council being given the power* to provide by the by-law, " for assess- ing and levying upon the real property to be immediately benefited by the deepening or draining, a rpecial rate sufficient to include a sinking fund, for the repayment of debentures which such Councils are hereby authorized to issue in such cases respectively, to provMe funds for such imprceements, and for so as.^essing and levying the same, by an annual rate in the dollar on the real pro- perty so benefited, in proportion, as nearly as may be, to the benefit derived by such portion." The rate so assessed is to be levied " in the same manner ar taxes are levied."* The Councils of Cities, Towns and Incorporated Vil- lages w\y also pass by-laws® for sweeping, watering or lighting any street, square, alley or lane, by meuns of a special rale upon the rateable property therein. The assessment under any by-law of the Council of a Town or Incorporated Village, for making or repairing any pavement in any public way or place near to any property, would appear, under the decision of the Court of Queen's Bench in Moore v. Hyncs,'^ not to forma charge upon ihe property ; the power given to the Coun- cil in such a matter being, for assessing or collecting from the proprietors, &c., such suras as may be necessary. 4 20 & 30 Vic. c 61, 8. 282. 6. Ont. Stat 31 Vic. c. 30, s. 80. 6. 29 & 30 Vic c. 61 , a. 310, sub. seo. 2. 7. ti(i.B.V. C. 107. INCUMBRANCES. 43 County Councils^ may pass by-laws for levying by assessment on all the rateable property within any par- ticular part of two Townships, to be described by metes and bounds in the by-law, in addition to all other rates, a sum sufficient to defray the expenses of making, re- pairing or improving any road, bridge or other public work, lying between such parts of such two Town.>hips, and by which the inhabitants of such parts will be more especially benefited. '^ ■I 6. Mutual Insurance Companies. It is important to ascertain, whether the vendor cr any former owner has ever insured the buildings on the properly, with any Mutual Insurance Company, because the property will, in such a case, be liable to the amount of the premium nolc given by the assured, and of the assessment thereon, for a proportionate part of any losses or expenses accruing to the Company during the continuance of the policy. The statute^ relating to Mutual Insurance Companies provides, that " all the right and estate of the assured, at the time of insurance, to the buildings insured by the Company, to the lands on which the same stand, and to all other lands thereto adjacent, mentioned and declared liable in the policy of assurance, shall stand pledged to the Company ; and the Company may sell, demise or mortgage the same or any part thereof, to meet the lia- bility of the assured, for his proportion of any losses or expenses accruing to the Company during the continu- ance of his policy, which sale, demise or mortgage, shall be made in the manner specified in the policy of the assured." 'CI, 5s r) MB €.■< : Si I"; 8. Con. Stat. U. C. c. 64, s. 342, sub. sec. 6 ; 29 & 80 Vic. c. 51, a. 344, sub. sec. 6. 9. Con. Stot. U. C. c. 61, a. 67. 44 INCUMBRANCES. The inquiry as to such liens is an exceedingly im- portant one, and should never be overlooked, because it is not necessary in order to preserve the lien of the Com- pany, that any instrument should be registered charging the lands mentioned in the policy. -^ In Montgomery v. The Gore District Mutual Insurance Con" "»any,^ Vankonghnet, C. said, " I regret, contrary to my rirst impression, to have to come to the conclusion that such a policy of assurance, or such an assurance as is made tue subject of consideration here, does not fall within the operation of the registry laws. In the first place, tho legislature, in th& act creating the lien, do not appear to contemplate that it should. They subject the right and estate of the assured in the lind at the time of insurance to the claims of the company. Now, the insu- rance may be effected without the issuing of a policy. The policy is but evidence of the insurance. * * * * But however this may be, suppose the policy made out, how are the company to register it ? It is not pretended they are to n'gister anything else. The moment the policy is prepared, subject to the delivery of the note, and perhaps to the payment of the instalment by him, as provided for in the 22nd section ol the act, it becomes the properly of the assured. What right have the Com- pany to register it, and how can they register it ? It is not a deed to them; it is a deed by them. It is the properly of the assured from the moment it is ripe for delivery. But the chief difficulty lies in the machinery by which registration is to be effected. The registry laws require that the instrument of which the memorial is to be put on registry shall, for the purpose of pro- curing such registration, be produced to the Registrar, and that he shall thereon, immediately after the registra- tion, indorse a certificate thereof. I do not see how the 1. 10 Grant, 504. INCUMBRANCES. 45 company, after ihc policy has become complete, and the properly of the assured, can insist upon retaining it for the purpose of registration, and if they cannot do so, they are not blamcable because it is not registered ; and they cannot, therefore be deprived of the lien which the law, without insisting upon registiation, has given to them." 7. Dower. If there is any deed in which the grantor's wife has not joined to bar her dower, or if the title is derived under a will or by inheritance, a claim for dower may exist. In such a case, e^ddence that tlo grantor or testator was unmarried should be called for, or if married, then proof of the widow's death, or that under the will she was put to an election between her dower and son:e other benefit, and that she has exercised Ijer election bv taking the substituted devise. To consummate the right to dower, three things are requisite, viz. : marriage, seisin, and the death of the husband. 2 It is not necessary, in order to entablish a widow's right to dower, to prove the marriage by persons who ^ere present at the ceremony ;3 evidence of cohabitation and reputation of marriage is sufficient.* It is necessary, that the husband of the woman claim- ing dower must have had seisin of the lands and tene- ments out of which dower is claimed during the cover- ture.^ Possession and receipt of rents has been held prima facii evidence of seisin ; but in another case it was held C Ml '• Mi ■ s^ 2. Co. on Lltt 31. 8. Phipps V. Moore, 6 Q. B U. C. 16. 4. Graham v. Law, 6 C. P. U. C. 310. 6. Puke on Dower, 24. 46 INCUMBRANCES. I h that the demandant could not be allowed to recover on mere evidence of posisession by her husband, without provii ing his title.® By the Consolidated Statute of Upper Canada'' rela- ting to dower, " When a husband hath been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same if he had recovered possession thereof, she shall be entitled to dower out of the same although her husband did not recover possession thereof; but such dower shall be sued for or obtained within the period during which such right of entry or action might be enforced." Since 6th March, 1834, a widow is also entitled to dower out of equitable estates; the statute^ providing, that " When a husband dies beneficially entitled to any land for an interest which does not entitle his widow to dower out of the same at law, and such interest whether wholly equitable or partly legal and partly equitable, is an estate of inheritance in possession, or equal to an estate of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in equity to dower out of the same." It will be observed that while all that is necessary to entitle a woman to dower at law, out of lands where the husband had the legal estate, is that the husband should have been seised during the coverture, it is necessary to give her dower in an equitable interest, that the husband should die entitled thereto. Dower may be barred, since the 11th day of May, 1839, by the wife joining in a deed or conveyance of the land, containing a release of dower,^ but before that 8. Draper on Dower, 28. 7. Cap. 84, 8 2. 8. 4 Wm. 4, c. 1, 8. 18 ; Con. Stet U. C c 84, b. 1. 9. Con. iiUt. U. 0. o. 84, 8 4 ; and see Heward v. Soott, 8 Chui. Cham. B. 274. Incumbrances. 47 8. Curtesy. . Teiiancy by the curtesy is like dower an estate for 1. 37 Geo. 8, c. 7 ; 48 Geo. 3, c. 7 ; 60 Geo. 3, o. 10. 2. Con. Stat. tJ. C. c. 84, si. 6, 7, 8, 9. 8. Draper on Dower, 44. 4, Draper on Dower, 46. 6. Tomllnson ▼. Hill, 6 Grant, 231. 6. 24 Vic. c. 40, a. 18 ; Ont. Stat. 32 Vic. c. 7, •• 28. ;ir rill date it was necessary to render a bar of dower effectual, thai the wife should be examined apart from her husband as to her consent to be barred of her dower, and that a certificate of such examination shouM be endorsed upon the deed.} ft is still necessary where a woman bars her dower by a deed to which her husband is not a party, that she should be examined, and the fact of the examination certified on the deed.2 By an Act passed in 1861, it is enacted that no action of dower can be brought, in case the claimant joined in a deed to convey the land or release dower therein to a purchaser, though the acknowledgment required by law at the time, may not have been had, or though any informality may have occurred in respect thereof. A writer on the law of dovver^ has expressed the opinion that by this statute acknowledgments of bar of dc^'er, as formerly required, appear to be abolished ; but this view has not generally been adopted by the profession. A sale of the land by the Sheriff under an execution against the husband, does not defeat the wife's right to dower;* but a sale and conveyance by the Sheriff for taxes does.** Dower will be barred if not sued for within twenty years alter the husband'a death. ^ "U 1^ ii »|[ 48 INCUMBRANCES. life, but differs from dower in being for the whole estate of the ,wife, not a third merely. It is also necessary to entiUe the husband to be tenant by the curtesy, that there should be issue of the marriage, capable of inheriting, born alive during the lifetime of the mother. ^ When the title depends on inheritance from a married woman, her husband may, therefore, be entitled to an estate for life in the lands, and evidence of his death s!)ould be called for, or a release of his interest procured. 9. Legacies. Legacies charged upon lands form a lien upon the property for twenty years from the time at which they become payable. Where, therefore, the title is derived under a will charging legacies upon the land devised, proof of payment, or that they have beeri released must be called for. The lapse of even twenty years is not sufficient to raise a presumption of payment, but after forty years, if possession has gone with the devise, payment may be presumed.^ ' If the land is charged with the payment of an annuity its discharge must be proved in the same way as the re" lease of a legacy.^ The period within which an annuity maybe presumed satisfied must depend on the life for which it is granted. If it is fair to presume, in the natural course of things, that the annuitant is dead, the want of a certificate of burial cannot be considered as an insuperable objec- tion to the title, but no case has occurred in which such a presumption has been made in less than thirty years. ^ 7. Co. on Lit. ?.9b. ; Bissett on Estates, 19, 8. Gov. Con. Ev. 2«7. 0. Cov. Cop, Ev. 204 1. Ibid. CHAPTER IV. PARTICULAR TITLES. \. Possession, It is not necessary that there should always be deeds or wills produced affecting the property in question during the period for which a title is required to be shown. Possession of itself is a sufficient title, and could it always be clearly shown to have been undis- turbed, would, no doubt, be the best of titles.^ But as it is difficult to show that possession has never been dis- turbed, a title where no deeds exist, should be rigidly enquired into and strictly proved.^ In Cottrell v. Watkins,* the Master of the Rolls said " I am perfectly satisfied that there are good titles in which the origin cannot be shown by any deed or will ; but then you must show something that is satisfactory to the mind of the Court, — that there has been such a long uninterrupted possession, enjoyment and dealing with the property as to afford a reasonable presumption that there is an absolute title in fee simple." In another case^ it was said, " a party seeking to es- tablish a title by possession against a paper title, and thus to usurp the place of the rightful owner, and sup- plant him, must do so by clear evidence admitting of no reasonable doubt." •mi' c MM ■• »■ A title by possession though less satisfactory than one which can be traced to the patentee from the Crown, is i Lee on. Aba. 28 ; Dart on Vendors, 197. 8 T-ee on Abs. 27. 4. 1 Heav. 805, 6. Low V. Morriaon, 14 Grant, 195. 4 50 PARTICULAR TITLES. a title which under an ordinary contract of purchase, a purchaser is bound to accept if daly verified.^ Lord St. Leonards, in Scott v. Nixon,'' said, " can this Court compel a purchaser to take a title depending upon parol evidence of adverse possession, under the new statute ? Under the old statute it was long undecided whether a purchaser could be forced to take such a title, but ultimately it was so determined, and I apprehend that it was quite settled, that a cleai title, and just as good as any other title, might be acquired by adverse possession, and that a purchaser would be bound to take such a title." In the subsequent case of Tuthill v. Rogers,® his Lord- ship said, " Upon a former occasion I was called on to decide whether this Court would enforce, as against a purchaser, a title depending on non-claim, between sub* ject and subject ; and I was of opinion that it did not matter how the title was acquired, if it were a good one ; • # « * I hgj(j ijjat the Court was bound to force the title on the purchaser, and that decision has been acqui* esced in." To force such a title on a purchaser, it is not sufficient merely to show possession by the vendor for twenty years. If the vendor relie» on a possef*sion of twenty years as giving him a good title, lie must show who the person is, that but for this possession would be the owner in fee simple in possession ; and that twenty years pos- session barred his right. , This it would not do, for example, if, when the twenty years began to run, such owner was an infant, under coverture, an idiot, lunatic, or of unsound mind. In that 6. D»rt on Vendor*, 204; Bug. V. ,& P. 339; Darby on Limitations, Sallaway 6. Jur. 119. 7. S Dru ft War. 406. 8. 1J./|)L.72. I ; Hyde v. PARTICULAR TITLES. 51 case,® " such person, or the person claiming through him, may, notwithstanding the period of twenty years herein- before limited shall have expired, make an entry or distress, or bring an action to recover tuch land or rent, at any time within ten years next after the time at which ihe person to whom such right shall have first accrued, as aforesaid, shall have ceased to be under any such disa* bility, or shall have died, (which shall have first hap- pened)." The statute just quoted, in its terms extended to per- sons " absent from Upper Canada ; " but by a more re- crnt Act,* " any plaintiff or person in any action, suit or proceeding, either at law or in equity, who has been or is resident without or absent from Upper Canada, shall have no greater or longer period of time to bring, com- mence or prosecute any such suit, action or proceeding,- by reason of such non-residence in, or absence from Up- per Canada, than if such plaintiff or person had been or were resident in Uppei* Canada, when the cause of such action, suit or proceeding first accrued ; and all and every exception or distinction in any law or statute re- lating to the limitation of actions now in force in Upper Canada, in favor of any plaintiff or person resident with- out or absent from Upper Canada, by whatever terms or words such residence without or absence from Upper Canada, is stated or described in such law or statute, shall be and the same are hereby abolished and re- pealed." In Low v. Morri*)n,2 it was argued by counsel, that by this act, only the remedy, and not the right was bar- red ; aud that if the party could assert his right without action, he might yet do so unaffected by the statute. But Vankoughnei, C, in giving judgment said, " I leaned 9, Con. Stat. U. C. c. 88, 8, 45. 1. 25 Vic c. 20, 8.1. . 14 Qnnt, IN, M PARTICULAR TITLES. much to that view until I came to consider the 16th section of the Consolidated Statute, ^ which enacts that at the determination of the period limited by this act, to any person for bringing any action or suit, the right and title of such person to the land, for the recovery of which such action might have been brought within such period, shall be extinguished." " Reading the 26th Vic. as abolishing the extended period for bringing an action formerly given to absentees, and as limiting it to twenty years, 1 must apply the 16th section of the Consolidated Statute, and hold that after the lapse of twenty years, the right and title of tlie absen- tees are extinguished. This law, if harsh, and all ex post facto laws are more or less unjust, the Legislature is responsible for. They, however, gave absentees a year within which to avail themselves of an existing disa- bility — whether or not this was sufficient to save existing rights is not for me to say — I must adjudicate that the right and title of the absentee are gone equally with those of the resident, where there has been a possession for twenty years adverse to the right or title." It must also be borne in mind, that the possession for twenty years will bar only the party entitled to the im- mediate possession of the land. It will not operate to defeat the right of a person entitled in reversion, until the expiry of twenty years from the time when the particular estate determined, and the reversioner acquired the right of entry.* The first section of the Statute,* provides, that no per- son shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years after the time at which the right to make such entry or dis- tress accrued ; and the second section, sub-section four, 3. Con. Stat U. C. c. 88. 4. 1 Hayes Conv. 253 ; Darby on Limitations, 390. 5. Con.Stat. U.C.C.88. PARTICULAR TITLES. 63 says, that in case of future estates, " such right of entry shall be deemed to have first accrued at the time at which such estate or interest became an estate or inte- rest in possession." The effect of the statute must, therefore, always be determined with reference to the actual slate of the title when the time began to run, so that if the fee should then have been parcelled out in particular estates and remainders, the title acquired by means of the statute would, for the most part, be commensurate only with the estates of those persons whose rights may from lime to time have accrued.'' The state of the title when the time begins to run is what has to be considered, for when the statute has once begun to run, a party cannot, by settling his estate, raise up new rights and give new claims to persons de- riving under the settlement."^ And Mr. Hayes lays it down® as undoubted, that " the effect of the statute must always be determined with re- ference to the actual state of the title when time begins to run, and that when the time has once commenced running, no subsequent alteration in the title will post- pone the bar." The condition of the land itself at the time possession was taken must also be shown, because if it was in a state of nature, forty years possession may be necessary to constitute a bar. m m 5 By the 27 & 28 Vic. c. 29, sec. 3, it is enacted that, " In the case of lands granted by the Oown of which the gran- tee, his heirs or assigns, by themselves, their servants or agents, have not taken actual possession by residing upon or cultivating some portion thereof, and in case 6. 1 Hayes Conv. 257. 7. Stacpoolo V. Stacpoole, 4 Dru. & War. 347. 8. 1 Hayes Conv. 267. ■^yir. 54 PARTICULAR TITLES. •onnc other person not claiming to hold under such gran tec has been in possession of such land, such possession having been taken while the land was in a state of nature, then unless it can be shown that such grantee or such person claiming under him while entitled to the lands had knowledge of the same being in the actual possession of such o her person, the lapse of twenty years shall not bar the right of such grantee or any person claiming under him to bring an action for the recovery of such land, but the right to bring such action shall be deemed to have accrued from the time that such know- ledge was obtained ; provided always, that no such action shall be brought or entry made afte forty years from ihe time such possession was taken as aioresaic^." The limitation of time to forty years was added by the Act above quoted, the original Act,*^ not having expresspd any limit to the lime within which the action might b6. brought, except twenty years after acquiring knowledge; of the possession. To give a good title by possession, it must be shown to have been continuous ;^ a person who takes possession of land w^ithout title has, while his possession continues, and before the statutory period has expired, a transmis- sible anc inheritable interest in ihe property. That in- terest may, it is true, be defeated at any moment by the entry of the rightful owner, but if he is succeeded in the possession by one who plaims through him, and whc« holds until the expiration of the statutory period, such successor has then as good a right to the possession as if he had himself occupied for the whole period.^ But if a series of trespassers, adverse to one another, and to the rightful owner, take and keep possession of an estate in succession for various periods, each less than 9. 4 Wm. 4, c. 1, s. 17 ; Con. Stat. U. C c. 88, 8. 3. 1. Young V. Elliott, 25 Q. B. U. C. 333. 2. ABher v. Whltlock, L. R. 1 Q. B. 1 ; Keefo v. Klrby, 6 Ir. C. L. R. 691. PARTICULAR TITLES. 65 twenty years, but exroeding in the whole twenty years, in whose favour is the right to be declared ? The right view seems to be, that the first of such trespassers, has, at the end of twenty years from his entry a righi to the possession. Possession being prima ^cie evidence of seisin in fec,^ the mere fact of priority of possession is sufficient proof of title on which a man can maintain ejectment against any person who was let into possession by him, or who came in as a wrong doer, while, therefore, the trespasser who is in possession at the time when the twenty years expires, can maintain his possession against the rightful owner, because his title is extinguished, yet he is liable to be ejected by any one who had possession of the pro- perty prior to himself but within twenty years, though without any belter title.* firVf ».-•.'','' In this country the question of title by possession, as against a paper title, often presents peculiar features, and is not always a matter of easy solution.^ Thus the ques- tion has sometimes arisen whether the occupation of part of a lot of land will give title by possession to the whole. The present current of authority seems to be, that such a possession will confer title only to the part actually occupied. This was the decision of the Court of Queen's Bench in Hunter v. Farr,^ when C. J. Draper, in delivering judgment, said, "If a man has title to a lot of land, though he has never entered into the actual possession of it, the law deems him to be in possession until some one else enters adversely to him, not recognizing his title, and so a fortiori if he enters and occupies part. If with- out title he enters on a lot which is in a state of nature, 3 Da-oy on Limitations, 390. 4. Doe d. Willis v. Birchmore, 9 A. A E. 602 ; Asher v. Whitlock, L. E. 1 Q- B. 1 ; Grooine v. Blake, 8 Ir. C. L. R. 432. 6. Dundas v. Johnston, 24 Q. B. U. C. 617. C. 23 Q. B. U. C. 327 ; and see Doe d. McDonoU v. Rattray, 7 Q. B. U. C. 321. 1 est ai »;: ^ I*; ■mi El re 66 PARTICULAR TITLES. clearing and liencing a few acres only, leaving the rest open and unimproved, the actual possession of the part will not alone, in my opinion, draw to it the possession of the other part." In McMaster v. Morrison,^ V. C. Mowat, before whom the case was heard, followed the decisions at law, and tho plaintiff having failed to prove that the testator exer- cised any acts of ownership on any portion of the lot except what he cleared, or that he was more than a mere trespasser in respect of even that portion, the learned Vice Chancellor said, " under these circumstances, he cannot; according to the authorities, be held to have been constructively in possession of any part of the lot of which he was not m actua' possession." n;.. =, .^'.„* The same point wa*" afterwards decided in the same way by the Chancellor in Low v. Morrison,® and also by Vice Chancellor Spragge in Wishart v. Cook.^ Although in McMaster v. Morrison, V. C. Mowat seems to have founded his judgment upon the fact that no proof was given that the party in possession was more than a mere trespasser, yet it is probable, that following as he did the decisions at law, the learned Vice Chan- cellor would have come to the same conclusion, even had il been shown that the parly was in possession under an apparent title, or had some show of right. In Dundas v. Johnston, ^ it is true the language used refers solely to occupation without any title ; Draper, C. J., saying, " when, therefore, a person without any title, or without any real or bona fide clairi of title, (though erroneous) entered upon any such lot, clearing and fenc- ing only a portion thereof, I do not understand upon what principle this wrong doer ci.a be deemed to have 7. 14 Grant, 138. 8. 14 Grant, 192. 9. 15 Grwit, 2:}7. 1. 24 Q. B. U. C. 650. PARTICULAR TITLES. P| taken, and to be in possession of the whole of such lot : — for example, of 200 acres, if the lot was originally sur- veyed to contain that quantity, or of the half or quarter lot, if such had been the division of the original survey ; or that his cultivation and fencing of a small part puts him into possession of as much, (be it Ihe whole or a fractional part of a lot) as the proprietor of the part tres- passed upon owns. In cas^ of what is well understood in the country by the term " squatters," I have always thought that as against the real ovmer 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 owner- ship, 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 possession." In the subsequent case of Young v. Elliott,^ the Court came to the same conclusion as in Dundas v. Jv>hnston. As the law now stands, it would, therefore seem that a party in possession without a paper title, acquires title only to that part of the lot actually occupied by liim. Perhaps fuller and further argument may lead to a diffe- rent conclusion being arrived at. f In the case of a person taking possession of land already cleared and cultivated, when he confines his occupation to a part only of the lot, cultivating that and that only, and allowing the remainder to lie waste, it may be reasonable to assume that such an occupation will confer titl6 only to the part actually occupied. But in the case of wild lands, where, unless a man goes to great expense in the way of fencing to enclose the whole lot, his visible possession and exercise of acis of ownership must be confined to the portion he may clear up and bring under cultivation, it would seem more rea- ls 2. 25 Q. B. U. C. 33*. 58 PARTICULAR TITLES. sonable to treat such occupation as possession of tlie whole lot. Indeed, in Dundas v. Johnston,^ the Court of Queen's Bench said, "It must depend upon the circumstances of each cqse, wheliier the jury may not, as against the person having the legal title, properly infer the pos- session of the whole lot covered by such a title, in favor of an actual occupant, tho»gh his occupation by open acts of ownership such as clearing, fencing and cultivat- ing, has been limited to a portion less than the whole," ■i\ ■ In a recent case,* C. J. Hagarty in delivering judg- ment said, " We are not prepared to hold that unenclosed wood land in this country can never be the subject of a twenty years' possession. If fencing and cultivation can alone constitute a possession, then title to open wood land can never be acquired against the true owner." ^ "' 2. Inheritance, ' . ♦ ; ^ A title may also depend upon descent, but such a title is always to be viewed with great jealousy ;^ indeed it is said to be ranked by conveyancers among the worst of titles ; and if it depends upon several successive descents ^it is scarcely marketable. ^ To prove a pedigree, the object is to show that the claimant is the next heir to the person last seised. In questions of pedigree the conveyancer requires the same proof of relationships, deaths and intestacies as Courts of Justice. '^ Of the intestacy of the ancestor the best evidence is the production of letters of administration taken out to his effects from the Surrogate Court. ^ But although let- 3. 21 q. B. U C. fi50. 4. Ileylandv. Scott, 19C. P. U. C. 172. , % 6. Atkinson on Titles, 37i. ' ;(: ; ,. i .. ; Hubback on Sue. 71. ■■- —^- — ^.-_.. j- - : .„ — .. 7. Cov. Con Kv. 27*. 8- Cov. Con. Ev. 277 ; Lee on Abs. 315 ; 2 Preston on Aba, 434 ; Dart on Vendors, 222. PARTICULAR TITLES. ters of administration are much relied on by convey- ancers, implicit reliance cannot be placed on them. They are granted by the Surrogate Court upon the affi- davit of the nearest relaiion that no will of the deceased has been discovered, and this it is evident can never be conclusive evidence that there is no will in existence.^ The weight to which they are entitled depends much upon the time which has elapsed since they were granted ; twenty years may entitle them, if acted upon, to great weight, and to be regarded as presumptive evidence, almost incontrovertible, that no will has been found; but two or three years elapsed are not sufficient to war- rant a purchaser in relying upon a grant of administra- tion, without other evidence of intestacy, or at least, without making further enquiry. ^ It is also sometimes required that administration should be taken out for the purpose of Staining the administra- tor's affidavit of belief that the ancestor died intestate, ^ and undoubtedly let rs of administration afford the most public proof that no vill exists ; but the opinion of the profession is against ti • purchaser having a right to in- sist upon such a proceeding. ^ When forty years have elapsed since the death intes- tate of a former owner seised in fee simple in possession, the Statute of Limitations may be relied on as against the claim of any latent heir,* as his right of action must have accrued at the death ; but if the intestacy is dispu- ted and there be reason to apprehend the existence off a will, whose contents ire unknown, the statute is a very slight protection ; as limitations may have been created, under which a right of action may exist for an indefinite period.^ 9. Lee on Abs. 316. 1, Lee on Abs. 315 ; Dart on Vendors, 225. 2. Hubback on Sue. 65. 8. Lee on Abs. 316. ^ 4. Lee on Aba. 467. 6. Dart on Vendors, 206. 5W £ M 60 PARTICULAR TITLES. Proof of intestacy may also bn given by producing a will or probate not passing the real estate in question, and not putting the heir to an election.^ ,,. ., , ./ Where a will was executed, a purchaser from the heir or from one claiming through him has a right to insist upon its being produced, that he may satisfy himself of its inefficiency, even although having been treated as a nullity by a professional man, it has been mislaid, and the vendor being heir has rested upon his title as such.^ But he cannot insist upon a covenant for its production, even though unproved, since it is merely negative evi- dence.^ ., - ;....,. .,^. , ..,, ,,„,,...,.. -.^ ■.,,.:. Where a person deduces his title as heir general at common law of his father, evidence is required not only that he is the legitimate son, but in the event of the an- cestor's death before the 1st of January, 185,'J,^ that he is the eldest or only son of his parents. ^ " Certificates of his parents' marriage, and of his own baptism within a reasonable period after the marriage, are admitted as full and ample evidence of legitimacy, without any proof of the identity of the parties.^ To prove the pedigree of a second son, certificates of the marriage of his father and mother, of the baptism of himself and eldest brother, and of the burial of his eldest brother, are the best and appropriate evidence ;^ there should also be strong negative evidence that the eldest brother died without issue. If this is not apparent from a certificate of his blirial, stating his age and bachelor- 6. Ibid, 225 ; Hubback on Sue. 65. 7. Stevens v. Guppy, 2 S. & S. 439; Hubback oa Sue. 65, 8. Ilubbuck on Sue. 05. 9. Con. Stat. U. C. c. 82. ' ■ ' ■' 1. 1 Byth, 149. ^ --..:- : -^ 2. Cov. Con. Ev 278. , 3. Cov. Con. Ev. 279. , PARTICULAR TITLES. 61 hood, an affidavit from some member of the family, or acquaintance, should be procured, testifying his belief that the party was either never married, or if married, never had any issue, or that such issue, if any, died in infancy, &c. The deponent should also state that he was intimately connected or acquainted with the family, and must have known of such issue if there had been any. ^ -. , , . .. -g, If the elder brother left issue, proof of their death should be required ; and the like evidence that the issue left no issue. -' ''■'■' -\ ■■ '■■■■■ ' '- To prove the pedigree of a third or fourth son similar evidence is required, in each case accounting for all who wor.id have inherited before him. In proving the title of daughters, the same evidence must be given, the death of all the sons, (if any) without issue, mupt be proved, and also the death of any of the claimanl'3 sisters who are dead, and that they died without issue.* Where the ancestor died since the first day of January, 1852, the proof should consist of certificates of the pa- rents' marriage, and proof that the claimants are the only children of the marriage. If any of them are dead with- out issue, the fact of their death, and that they left no issue must be proved. If they did leave issue, the issue must in like manner be accounted for. :(?^» .:/ ^t The proof of a collateral heirship, as of brothers, uncles, aunts or cousins, must be supported in the same way. 5 Great difficulty is frequently experienced in giving RC: rt •I •v 4. Gov. Con. Ev. 280. 6, Cov. Con. Bv. '280. ■■iJtt: STf PARTICULAn TITLES. direct proof of ihe fate of persons who have gone abroad and who have never afterwards been heard of, that these persons died without issue, or that such issue has become extinct. These are difficulties which a Court of Equity wotild never compel an unwilling purchaser to accept, unless the lapse of time be such as to raise a violent presumption in favour of the continuing and uninterrupted possession.*' A seven year absence without tidings, though it pre- vails as evidence of death in ejectment, is clearly insuf- ficient between vendor and purchaser, that the title is good against all ihe world, and not merely as sufficient to prevail as against certain contending parties. '^ No certain period can be fixed upon, which will raise such a presumption ; every case must depend on its own particular circumstances. The presumption of death has been admitted in one case after twenty years ;^ in an- other case after fourteen years ;^ and in a third after sixteen years ;^ but in a recent case,^ after absence and silence for nineteen years, the Court refused to presume death, when the circumstances rendered it improbable that the party, if alive, would have communicated with her friends. Scarcely any length of time will, however, be sufficient to compel an unwilling purchaser to take a title depend- ing on such a presumption of death, unless made with referenctt to the age of the party said to be deceased ; and if the party whose death is asserted was, when last heard of, very young, the period must be that beyond which human life does not commonly extend.^ If the point to be proved, or rather to be presumed, is, 6. Cov. Con. Ev. 280. , T. Dart on Vendors, 228 ; Hubback on Sue. 179. 8. Bailey r. Hammond, 7 Ves. 690. ;V ' ■ >-\-.'-:^(}^'- '■>■:■■:■', z r 9. Lee V. Willock, 6 Ves. 605. ^- - - 1. 5 Ves. 458. -- --■•. ■• " :■■ — "*■■■ ' '■ " 2. Bowden v. Henderson, 2 iSm. & O. 560. 3. Lee ou Aba. 467* PARTICULAR TITLES. 63 death without issue, it is questionable whether a Court would, as against a purchaser, ever make the presump- tion within the period of sixty years.* : > It may be added that in cases of pedigree, persons presumed to be dead, are presumed to have died unmar- ried and without issue. ^ A certificate of baptism is no evidence of the exact age of a party ; it is good evidence of his legitimacy but not of his age.^ If the clergyman has, however, entered the age of the infant, the conveyancer receives the certificate as prima facie evidence of the age, though it would not be evidence on that point in Court. Declarations of a deceased parent are evidence of the time of a child's birth ;'^ and an entry by a man midwife of his having delivered a woman of a child on a certain day, referring to his ledger, in which he had made a charge for his attendance, which was marked paid, has b. en received as evidence. ^ The regular proof of the celebration of a marriage is the certificate of the clergyman who performed the cere- mony, such certificate being one which he is required by statute^ to give the parties if they desire it ; or the evidence of parties present at the marriage. In case of the absence or death of the witnesses present at the marriage, a cei[tified copy, by the Registrar of the County, of the return made to him by tiie clergyman who performed the ceremony is made sufficient evidence by the statute. ^ . ,. .-, • , In the case of old marriages, where tne parties have 4. Ibid, 467. 6. Doe d. Oldham v. "Wolley, 8 B. & Or. 22 J Doe d. Banlng v. GriflBn, 16 East, £93. 6. Cov, Con. Ev. 281. : ^r i^ 7. Ibid, 282. ■ ..... .. .-.., . ^ .: -[ 8. Higham v. Kidgway, 10 East, 109. 0. Con. Stat. U. C. c. 72, H. 4. , , • . 1. Ibid,8eo.7 ;i ;. \--.s > : .- . . ^ 9" I 11 m 64 PARTICULAR TITLES. been long dead, and the place of the marriage is unknown, resort must often be had to the presumptive evidence of general reputation. ^ The chief danger attending presumptive evidence of marriage is, that such evidence may be rebutted by either of the parlies ; but after the death of both parties such evidence may be safely relied on. 3 3. Wills. *y.''"'^;,><'H-^') £i. ''• If the title is derived under a will, the probate, or a copy stamped with the seal of the Surrogate Court,* is ordinarily sufficient proof of the will as between vendor and purchaser ;^ and the purchaser's solicitor may, as in the case of a deed, presume due execution according to the purport of the will. He will observe, whether it purports to have been executed in the presence of two witnesses, and, whether the attestation clause states that they subscribed in the presence of '^ach other. ^ If it does not, an affidavit by one of the subscribing witnesses or some other person who saw the will signed, testifying the actual fact, may be called for.' The Court of Common Pleas has, however, decided^ that it is not necessary that the witnesses should sub- scribe in the presence of each other ; their subscribing in the presence of the testator is sufficient, though they do not subscribe in the presence of each other. In the case referred to, the Court held that the statute which says, " 1^ shall be sufficient if such witnesses sub- scribe their names in presence of each other, although 2. 1 Byth 168 ; Cov. Con. Ev. 286. 8. 1 Byth. 1C8 ; Cov. Con. Ev. 283. 4. Con. Stat U. 0. c. 16, ss. 3, 51. 6. Cov. Con. Ev. 91, 92. 6. Con. Stat. U. C. c. 82, 3. 13. 7. Cov. Con. Ev. 94, 97. 8. Crawford v. Curragh, 16 C. P. U. C. 66. I- PARTICULAR TITLES. 65 3'i*' their names may not be subscribed in presence of the testator ; "^ does not repeal the clausp in the Statute of Frauds relating to wills^^ but merely extends it, and that therefore, a will subscribed by the witnesses in accord- ance with the provisions of either act, is sufficiently attested. In delivering judgment, A. Wilson, J. said, " The statute of Charles has not, in express terms, been re- pealed as to wills ; and, so far as it has not been repealed by enactments inconsistent with its maintenance in part or in whole, there is no reason why it may not be con- sidered as still an active law here. Now, under that statute it was a positive direction that the witnesses should subscribe and attest the will in the presence of the devisor^ otherwise the will should be utterly void and of none effect." .'■^■■•^fo •;■::.>. -^•ff^-- ':':■',.■ ^\-; " There is nothing inconsistent in our amended law and this provision subsisting together : on the contrary, it rather seems that the Legislature intended that this part of the old law should yet continue to be the law ; leaving it, however, to the devisor to pursue either the new law or the old law, according to circumstances or his own convenience — that is either to see the witnesses subscribe the will, or if he did not, that they should see each other subscribe it, and, therefore, we are of opinion that, under the provision, " It shall be sufficient if such witnesses subscribe their names in presence of each other, although theirnames may not be subscribrd in pres- ence of the ^testator,^^ the law of this province does not prevent a will being still subscribed by the witnesses in the presence of the devisor, as it might have been before the passing of the late act, under the Statute of Charles ; and that the new provision has extended the old law by making it sufficient if the witnesses see each other sub- m ^1 « >M 0m i. 9. Con. Stat. U. C. c, 82. s. 13. 1. 29 Car. 3, c. 3, s. 5. d 66 PARTICULAR TITLES. scribe the will, although the devisor may not have seen them." " We arc of opinion, then, that, although the will was not subscribed by the witnesses in the presence of each other, it was not, nevertheless, void for that reas-oo, but that a subscription by them in the p ence of the devisor was, if it be established, a sufficient subscription accord- ing to our law." ,, If the testator was a marksman, the attestation should state that the will was read over and explained to him, and if the attestation is silent as to this the purchaser may require proof from one of the witnesses or some other person present, that the will was read over and ex- plained. ^ . , ,, , . , , Where the will has not been proved the vendor must produce the original, if it happens to be in his posses- sion. ^ If the will relates to real eslale only, and has been neither proved nor registered, or if relaiing lo per- sonal estate also, it has not been proved, inquiry should always be made as to the reason for this omission. The \ will may have been revoked by the testator, and the en- quiry may lead to the discovery of this. Where a will has been executed, it must be produced before a purchaser can be compelled to accept the title,* although having been treated as a nullity by a profes- sional man, it has been mislaid, and the vendor being heir, has rested upon his title as heir.* ^ The exact terms of the devise through which the ven- ' -dor claims, and the effect of the words used, must be carefully considered, as difficulties of construction often €irise. 2. Gov. Con. Ev. 96. ^ 3. Sug. V. & P. 414. --..-;,' ..-.•..,.„. ./, . ■•'"■'-■ 4. Hubback on Sue. 66. 5 ''HI '^^^^ &. Stevens v. Quppy, 2 S. 4 S. 489l 1>ARTICULAR TITLES. m The general rule as to the admissibility of parol evi- dence in the construction of wills is, that if there be a latent ambiguity raised by extrinsic circumstances, it may be explained by the same means, but if the am- biguity be patent, that is, arising on the face of the will itself, all reference to matters dehors the instrument is, as a general rule, strictly forbidden.^ In the case of wills executed by persons dying before the first day of January, 1869, the will was construed as speaking from the date of its execution, and property acquired by the testator after the date of the will, did not pass under the will. If, however, in the case of any person dying after the 6th day of March, 1834, the will contains "a devise'' in any form of words of all such real estate as the testator shall die seised or possessed of, or of any part or proportion thereof, such will shall be valid and effectual to pass any land that may have been or may be acquired by the devisor after the making of such will, in the same manner as if the title thereto had been acquired before the making thereof." In the case of Whateley v. Whateley,^ where the words of the will were, **• I give all my real and personal estate to my executors and trustees for the purposes of this my will ; " V. C. Mowat, after quoting the words of the statute,^ said, " I see no suflScient reason why such a devise as this will contains, should not be held a sufficient compliance with this provision. » * * ♦ i think that a devise in this form shows an intent to pass all the testator should have at his death, and that all the statute demands is a devise in any form of words which shows such an intent." On a rehearing of the case,* the decree pronounced by 6. Taylor on Ev. 944 ; Cov. Con Ev. 103. 7. Con. Stat. U. 0. c. 82, s. 11. ■ , ,- 8. 13 Grant, 436. ; • 8. Con. Stat. U. Q. o. 82, 8. 11. " 1, M Grant, 430. - I .1 ll-* 68 PARTICULAR TITLES. V. C. Mowat was reversed ; the Chancellor and V. C. Spragge holding that a devise in such a general form was not sufficient to pass after-acquired estate. The Chancellor in delivering his judgment said, the Legisla- ture " are careful, merely to say that, if the testator in any form of words devises after-acquired real estate, it shall pass. They have not said, that without any such form of words it shall pass under a mere general devise of realty. To hold that this was the meaning of the Le- gislature would be to reverse the whole law as it then stood, and to require that, where parties did not intend their after acquired property to pass, they should use re- strictive words. But the Legislature have not said this. It seems to me that they leave the law as it was, unless the parlies choose to extend the operation of the will by. some (orm of words embracing after-acquired real estate." And V. C. Spragge said, " In a will of personal estate there is an expressed intention that it should be a bequest of what the testator has at the time of his death, because the law gives his words expression as at the time of his death. But our statute making no such rule as to real estate, requires the testator to express an intention as to after-acquired property if he has such intention. The language of the Statute "a devise in any form of words of all such real estate as the testator shall die seised or possessed of," irnplies or rather requires that the testator must in some form of words express it to be his inten- tion to devise his after-acquired real estate. The words " I give or I devise all my real estate," do not import such intention : the reason being wanting, which, in the case of personal estate, imputes such intention to the testator. There is, however, this point in the case before us. The testator joins together his real and per- sonal estate making one disposition of both in these words, *' I give all my real and personal estate." Is that a form of words denoting an intention to devise after PARTICULAR TITLES. 69 acquired real estate ? or may it not with equal propriety- be said ihat they di note an intention on the part of the testator to limit his bequest of personal estate to what he then possessed ? I think the proper construction of the will, is to read it, as to each kind of property, as the law requires it to be read, if each were expressed separately." Although two members of the Court took this view of the statute, V. C. Mowat adhered to his original judg- ment, and after remarking that "the leading principle 'according to which wills are interpreted, is the inten- tion of the testator;" and revlcv.'!!?g at length the au- thorities bearing on the subject, he said,^ " I read the clause in our act as rendering valid devises of after-ac- quired real estate, and requiring for this purpose nothing more than any words which show the intent to pass the property. Thus, if a testator having contracted and paid for land Blackacre makes a will, and subsequently obtains the conveyance, his devise of Blackacre by description would, I apprehend, give the devisee the legal as well as equitable estate therein ; for it is surely not necessary for this purpose that the will should be expressed as devising any or all " the estate in Black- acre that the testator may die seised of." To require a residuary or general clause to make an express reference to after-acquired property appears to me to be demanded by no sound rule of construction ; to serve no good pur- pose ; to create an unnecessary and indefensible distinc- tion between the words which pass after-acquired per- sonal estate ; — and to force upon wills wherever the .rule is applied, a meaning and an effect contrary to the intention of the testator." Now, however, the law has been altered, and by an act of the Legislature of Ontario,^ it is provided, where the devisor dies after the 1st day of January, 1869, that. '4 ml S Hi' 2, Ibid, 443. 8 Ont. Stat. 32 Vice. 8. 70 PARTICULAR TITLES. " Every will shall be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears by the will." ^ #:;^ , >> ? i, " No* conveyance or other act made or done subse- quently to the execution of a will, of or relating to any real or personal estate therein comprised, (except an act by which the will is revoked), shall prevent the operation of the will with respect to such estate or interest in :3uch real or personal estate as the testator shall Have power to dispose of at the time of his death." " Every^ will shall be revoked by the marriage of the testator, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would, in default of such appointment, pass to the testator's heir, executor or administrator, or the per- son entitled as the testator's next of kin under the statute of distributions." v.f lands. But as *' divers doubts, questions and ambiguities " had arisen, or were apprehended on that and other points, the statute 34 & 35 Hen. 8, c. 5, was passed to remove them, and by the 14th section of that act such devises by married uomen were expressly prohibited. . ., , A married woman may, ho-vever, make a testamen- tary disposition of her real estate under a power,^ by way of execution of such power ; and equity will carry into effect the will of a married woman disposing of her real estate in favour of her husband, or other persons than her heirs at law, provide^ the will be in p.irsuance of a power reserved to her.^ The power to make a tes- tamentary disposition of her estates may be conferred upon a married woman by a settlement either before marriage or subsequently thereto ; and it may emanate either from her husband or from a third person. It should appear upon the face of the will, made by a mar- ried woman, that it is made in pursuance of the power. By the statute giving married women certain separate rights of property,^ " From and after the said 4th day of May, 1859, and hereafter, every married woman may, by devise or bequest executed in the presence of two or more witnesses, neither of whom is her husband, make any devise or bequest of her separate property, real or personal, or of any rights therein, whether such property was or be acquired before or after marriage, to or among her child or children issue of any marriage, and failing there being any issue, then to her husband, or as she may see fit, in the same manner as if she were sole and unmarried ; but her husband shall not be deprived by n n 1 ^ 9. Lovelass on Wills, 267. 1. Wright V. Englefleld, Air.b. 408 ; 8. C. nom. Wright v. Cadogan, 2 Eden, 28fl. 2. Con. Stat. U. 0. c. Ti, a, 16. 72 PARTICULAR TITLES. such devise or bequest of any right he may have acquired as tenant by the curtesy." This statute does not in any way affect the rights of a married woman to execute a will in pursuance of a power. • 4. Decrees. Where a decree of the Court of Chancery forms a link in the chain of title, it is the duty of the purchaser's so- licitor to look through the whole of the decrees and other proceedings in Chancery to ascertain that nothing con- tained in them will affect h^s title. ^ A purchaser will not be protected by a decree obtained in an imperfect suit^ such a decree not being binding as to persons not parties to the suit, and whose rights are affected by it.* A party purchasing under a decree of the Court is bound to see that the sale is made according to the decree ;^ and all the proceedings in the cause ought to be produced and inspected by the purchaser. ^ The Court though it may direct the sale of the property never undertakes to warrant the title, and it is quite pos- sible for a purchaser to be evicted, although the sale is made by an order of the Court, and although the title has passed through the Master's Office ''. The only mode in which a purchaser can obtain a more perfect title on a sale under a decree, than under an ordinary contract for purchase is by obtaining a deed from the Court under the Act for Quieting Titles ^ If a purchaser takes a title to an estate sold under a 8. Le« on fibs. 317. 4. Colclough V. Sterum, 3 Blljh, 186 ; Giffard v. Hart, 1 Sch & Lef 386. 5. Atkinson on Titles, 600. (J. Lee on Abs. !70. 7. Ibid. 8. 29 Vic. c. 26, s. 32. PARTICULAR TITLES. 73 decree, but not in conformity with the provisions of the decree, he will not be protected by it,^ sales under de- crees being entitled to protection when they are conform- able to the decree, not otherwise. * Mere irregularities in a decree arc not, however, suffi- cient grounds for impeaching a sale made under it. In Bennett v. Hamill," Lord Redesdale said, " The purchaser has a right to presume that the Court has taken the steps necessary to investigate the rights of the parties ; and that it has on the investigation properly decreed a sale ; then he is to see that this is a decree binding the parties claiming the estate, that is, lo see that all proper parties to be bound are before the Court, and he has fur- ther to see that taking the conveyance he takes a title that cannot be impeached aliunde. He has no right to call upon the Court to protect him from a title not in issue in the cause, and no way affected by the decree, but if he gets a proper conveyance of the estate, so that no per- son whom the decree affects can invalidate his title al- though the decree may be erroneous, and, therefore, to be reversed, I think the title of the purchaser ought not to be invalidated. If we go beyond this, we shall intro- duce doubts on sales under the authority of the Court which would be highly mischievous." In Dickey v. Heron, ^ where a motion was made by the defendant to open biddings or set aside a sale, on the grounds that the report of the amount due by the defen- . dant was not filed until aftor the day appointed for pay- ment, and that the sale under the decree had not in fact been advqrlised as directed by the Master although stated in the report on sale to have been so, it was held that the first objection had been waived liy delay nnd 9 Colclough V. Stenim, 8 niigh, 189, 1. Atkinson on Tltlea, 561, 2 2 Sch. 4 l.ef , 677. 8. IChan. Cliaui. r. 140, ^ i ' '' I M I m IK ' * ' i I"- m ft n PARTICULAR TITLES. ^^Hi 1 '''mII that the second did not affect the purchasers: V. C. Spragge saying, " I think a stranger purchasing is not affected by proceedings in the suit further than this, that he raust see that there is a decree or order authorizing the sale that is made." In another case* where a bill was filed to impeach a sale made under a decree Lord St. Leonard said, — " If I found a purchaser buying, where fraud appeared clearly on I he face of the decree, I should hold him to have notice of it : but 1 should have much hesitation in visiting a purchaser wilh the consequences of what might be deemed implied notice of a fraud, which was not discovered by the Court, or the officers of the Court, or the counsel concerned in the cause, whose duly it is not to permit the Court to make a decree not warranted by the facts of the case." Where the title is derived, not under a decree for sale, but under a decree and final order of foreclosure, the same rule seems to apply. .... In I lie recent case of Gunn v. Doble,' where a bill was filed by a mortgagor against a purchaser from the morlgygee after a final order of foreclosure, several objections were taken to the regularity of the proceed- ings in Ti.?- foruolosure .'?nit. It was objected, among otiier things, thnt in the bill and all the subsequent pro- ceedings the plainiiff was improperly warned as " Ar.-H' Louisa ilailj" her projjer name be iri " Annie Louibd Rait;" that a person to whom the d*ifen'iant )veye(i pendente lite should have been made a parly; and that the repovt finding the amount due and appoiniiag a day for payment, though daied on the I3th of March, was not in fact signed till the 1 8th of April. All the objections raised were overruled by V. »"' Spragge, 4. Dovioii V. Evaiv, 1 J. i- L. 267. 6. U Grant, 666. » VJKt.'^SUSlM^i *.m:r ■p PARTICULAR TITLES.. 75 although the learned Vice Chancellor expressed his disapprobation of the ante-dating of the report, remark- ing, " If the question were between the original parties it would be at least doubtful if the mortgagee could have held her final order of foreclosure ; the question is whether Doble, purchasing under the circumstances that he did, can be affected by the irregularity." . ■,.. After commenting upon the authorities (all of which have been already quoted) the learned Vice Chancellor said, " The observations of the learned Judges, whose • language I have quoted, occurred in cases of sales under decrees ; but I apprehend that they did not mean to hold purchasers under decrees no< bound to look at the proceedings before decree, merely on the ground that to require more would have a tendency to damp the sales of the Court ; in other words, that it would not be expedient to require more ; but that, while point- ing out the injurious effect that the requiring more would have upon sales, ihey held as a malier of prin- ciple, thai parties acquiring rights under decrees, not beixg themselves parties to the suii could not be held bound to see whether the proceedings by which the decree was arrived at were correct and regular; includ- ing in the word decree any decretal or other order by which the rights of the parties were disposed of; and which would comprehend a final order of foreclosure, and, as the form is in Loland, of foreclosure and sale. If a purchaser at a sale by the Court ' has a right to presume that the Court has taken the stej;s necessary to investigate the rights of the parties, and that il has on thai investigation properly decreed a sale ' it does appear to rae, upon principle, that a purchaser from a party in v/hor partition or sale the decree of the Court is " as® effectu;i^j U)r the apportionment or conveying away of the estate or interest of any married woman, infant, or lunatic, party to Ib'^ proceedings by which the sale or partition is made or declared, as if any person compe- 6 Mair v. Kerr, 2 Grant, 228. 7. Sutherland v. Diclwon, 2 Chan. Cham, R 25. 8. Chan. Con Ord 113, 114, 115, 110 ; Taylor's Chan. Ord. 179, 180, 181. 0. Con.Stai. T. C. c 12,8.47. PARTICULAR TITLES. T7 tent to act for himself," and no day to show cause need be reserved. 6. Vesting Orders. In every case in which the Court of Chancery has authority to order the execution of a deed, conveyance, transfer or assignment of any property, real or personal, the Court may, instead of ordering ihe execution of a conveyance, "make^ an order vesting such real or per- sonal estate in such person or persons, and in such manner, and for such estates, as would be done by any such deed, conveyance, assignment or transfer, if exe- cuted ; and thereupon the order or decree shall have the same effect boi& at law and in equity as if the legal or other estate or interest in the property had been actually conveyed, by deed or otherwise, for the same estate or interest to the person in whom the same is so ordered to be vested, or in the case of a chose in action, as if such chose in action had been actually assigned to such last mentioned person." Where a title is derived under a vesting order, the purchaser is entitled to call for evidence that the persons whose interest were intended to be assigned or conveyed by the order, were alive when it was made. 2 It is doubtful whether the Court can, under this Act, make a valid vesting order transferring the estate of a married woman. In Clark v. McGregor,^ a decree vesting the estate of a married woman was made by V. C. Mowat, but in Field V. Moore,* the Master of the Rolls said, " I am not aware of any principle which would enable this Court to bind the real estate of a married woman, in any i tmi] 1* ' ili 1. Con. Stet. U. C. c. 12, 8. 03. 2. Slater v. Fisken, 1 Chaii. Cham. R. 1. 8. MS. 29th April, 180V. 4. 19 Beav. 196. 'A'-^-.: 78 PARTICULAR TITLES. •m mt •tri manner except by those formalities wliicli are required by law." Under the Imp. Acts 13 & 14 Vic. c. 60, and the 15 & 16 Vic. c. 55, which are in I'orce in this Pro- vince,^ in the several cases of a lunatic, or person of unsound mind, or infant being seised or possessed of any land upon any trust, or by way of mortgage, or entitled lO any contingent right in any lands upon trust or by way of mortgage ; Or, t>f any person, solely or jointly with any other person or pejsons seised or possessed of any lands upon any irusi or eniiiled to a contingent right in any lands upon any trust, being out of the jurisdiction^ or not to be found ; Or, of its being uncertain which of several persons jointly seised or possessed of any lands upon any trust was the survivor ; Or, (where one or more person or persons shall have been seised or possessed of any lands upon any trust) of iis not being known whether the trustee last known to have been seised or possessed be living or dead ; Or, of any person seised of any lands upon any trust having died intestate as to such lands, without an heir, or having died and its not being known who is his heir or devisee ; Or, of lands being subject to a contingent right in any unborn person or class of persons, who, upon coming into existence, would, in respect thereof, become seised or possessed of such lands upon any trust ; Or, of a person jointly or solely seised or possessed of any lands, or entitled to a contingent right therein upon any trust being demanded by a person entitled to require a conveyance, assignment, or release of the same respec- tively, or his agent, to convey, release or assign the 5. Con. tital. IT. C. c. 12, s. 26, sub. sec. 10 ; R« Lash, 1 Chwn. Cham. R. 226. PARTICULAR TITLES, n same, but wilfully refusing or neglecting to convey or assign the said lands for the space of twenty-eight days nexl after such demand ; ** The Couil of Chancery is enabled to make an order vesting such lands in such person or persons in such manner and for such estate, or releasing the lands sub- ject to such contingent right therefrom, or disposing of the same, as the Court shall direct ; and the order is in itself to operate as an assurance. And where any mortgagee shall have died without having entered into the possession or into the receipt of the rents and profits of the mortgaged lands, and the money due in respect of the mortgage shall have been paid to a person entitled to receive the same, or such last mentioned person shall consent to an order for the reconveyance of such lands, the Court may make an order vesting such lands in such person or |)ersons, in such manner, and for such estate as tlie Court shall direct in case an heir or devisee of such mortgagee shall be oul of the jurisdiction or cannot be found; Or, an heir or devisee of such mortgagee shall, upon a demand by a person entitled to require a conveyance of such lands, or his agent, have stated in wrilmg that he will not convey the same, or shall not convey the same, for the space of twenty-eight days next afler a proper deed for conveying such lands shall have been tendered to him by a person entitled as aforesaid, or his agent ; Or, It shall be uncertain which of several devisees of such mortgagee was the survivor ; Or, it shall be uncertain as to the survivor of several devisees of such mortgagee, or as to the heir of such mortgagee, whether he be living or dead ; Or, such mortgagee shall have died intestate as to such lands, and without an heir, or shall have died, and it shall not be known who is the heir or devisee ; and the order is itself to have the elfeci of an assurance. ii' 'li 80 PARTICULAR TITLES. Instead of making a vesting or releasing order, the Court may, in every case, appoint a person to make a conveyance, assignment, release or disposition of the lands or contingent interest which, when duly made, is to have the effect of a vesting or releasing order. Under these provisions the Court may vest the legal eslaie, subject to redemption, in the executor of a de- ceased mortgagee, or in the administrator of a mort- gagee in fee, who has died intestate,^' whose heir is unknown, the debt remaining unpaid ;'' though at first the opposite was held. 6. Acts of Parliament. Most private Acts of Parliament in this Province, con- tain a clause declaring that they shall be deemed public acts, and be judicially noticed without being specially pleaded ; and that a copy printed, or purporting to be printed by the Queen's Printer shall be received as evi- dence. The clause declaring the act to be a public act, does not render a copy of the act good evidence except as be- tween the parties ; against strangers it is inadmissible. ^ Lord Tenterden, in the case cited, held that the clause only applied to the form of pleading, and did not vary the general nature and operation of the act. Where there is a clause declaring a copy of the act printed by the Queen's Printer to be evidence, the pro- duction of a copy purporting to be so printed is suffi- cient;^ but if the act contains no such- clause, then, it must be proved by a copy examined with the original.^ By the interpretation acts both of the Dominion of 6. Re Boden, 1 D. M. 4 0. 67. ' 7. Re Meyriok, 9 Ha. lie. 8 Brett v. Beales, 1 Mood & M. 425. 9. Dart on Vendors, 204 ; 1 Byth. 109. 1. Gov. Con. Ev. 81 ; Dart on Vendors, 205 ; Lee on Abs. S21. ; ; PARTICULAR TITLES. 81 Canada,^ and Province of Ontario,^ " Every act shall, unless by express provision it is declard to be a private act, be deemed lo be a public act, and shall be judicially noticed by all Judges, Justices of the Pence, and others, without being specially pleaded — and all copies of ccts, public or private, printed by the Queen's Printer shall be evidence of such acts and of their conleni s ; and every copy purporting to be printed by the Queen's Printer shall be deemed to be so printed." A public act of Parliament is notice to all mankind, but a private act, or a private act made public, is not of itself notice to a purchaser.* The only object of the pro- viso for making it a public act being, that it may be judicially .aken notice of without being specially pleaded and to save the expense of proving it by an attested copy.^ Where a sale is made in pursuance of an Act of Par- liament, the provisions of the act must be followed strictly ; the exercise of powers conferred by an Act of Parliament receiving like the exercise of other powers a strict construction, consequently the evidence necessary to show th.it all the forms have been complied with, be- comes a necessary part of the title. ^^ But if a Court having jurisdiction, improperly decides, in carrying into eifect a special Act of Parliament, as to debts or claims on the estate, such errors will not aflect a purchaser.^ Recitals in private acts require the same authentica- 2. 81 Vic c. 1, 8. T, sub. sec. 88. 8. Out. !«tat 31 Vic. c. 1, a. 7, «ub. sec 38. 4. Sug. V. & P. 76« . Dart on Vendors, Mi. 5 Hope V. Stevenson, 3 Bos, A P. 578. 6. Sug. V. ft P. Ill ; Atliinson on Titles, 658. 7. Sug. V. A P 111, 112. 6 IMAGE EVALUATION T[JST TARGET (MT-3) V / // ^it. ^ o 1.0 i.l 11.25 lit Ki 22 2.0 U 111.6 Vi '^ 7 r 7 PhotDgraphic Sciences Corporation ^ .* 23 WIST MAIN STREET WEBSTER, N.Y. H580 (7)6)872-4503 ifi ife« PARTICULAR TITLES. 87 Since 1793, the acts relating to the assessment of pro- perty and levying taxes thereon have been numerous, have followed each other in such rapid succession, and have been so varied in their provisions, that the law re- lating to such matters is in an exceedingly unsatisfac- tory state.® Under the earlier acts,^ the only remedy provided for levying taxes upon default in payment, was by distress and sale of the defaulter's goods and chattels. The 51 Geo. 3, c. 8, passed in 1811, provided, * that all lands held in fee simple, by Land Board certificate. Order of Council, or certificate of a Governor of Canada should be considered rateable property ; that the amount levied should not in any one year exceed one penny in the pound ;^ and that in default of payment the amount should be levied by distress and sale of the defaulter's goods and chattels. ^ With the exception of an act* passed in 1798, which permitted the Justices of the Peace of a District in Quar- ter Sessions assembled to levy a rate for establishing stone monuments at Township boundaries, and to sell lands for default in payment, the first act authorizing the sale of lands for arrears of taxes was the 6 Geo. 4, c. 7, passed in 1825. « (a) Surveyor GeneraVs Return. The Act passed in 1819* followed the 51 Geo. 3, c. 8, I ! i. tt •» 8. 88 Geo. 3, c. 3 ; 43 Geo. 8, c 12 ; 47 Reo. 3, c 7 ; 61 Geo. 3, o. 8 ; 65 Geo. 8, c. 6 ; 49 Geo 8, c. 7 ; 69 Geo. 8, c. 8 ; 6 Geo. 4, c. 7 ; 9 Geo. i, c. 3 ; 7 Wm. 4, o. 19 ; 1 Vic. c. 20 ; 4 & 6 Vic. c 10 ; 13 & 14 Vic. c. 67 ; 16 Vio. c. 182 ; 16 Vic. c. 183 ; 27 Vic. c 19 29 & SO Vic. c. 68 ; Ont. Stat. 82 Vic. c. 3a 9. 33 Geo. 3, c. 3 ; 43.Geo. 8, c. 12 ; 47 Geo, 8, c, 7 ; 61 Geo. 3, c. 8. 1. Sec. 4. 2. Sec. 6. S. See. 8. 4. 88 Geo. 8, c. 1. & 69 Geo. S, c. 7. 618 PAllTICULAR TITLES. I r «: ■ *■■» as to the lands liable to taxation, and to enable the mu- nicipal officers to impose an equal rate, and to inform them with certainty as to the proper lands chargeable therewith, the Surveyor General was required,® on or before ihe 1st day of July, 1820, to furnish the Treasurer of each districi with a list or schedule of the lots in every town, township, or reputed township of ihe district, as the same were designated by numbers, concessions, or otherwise, on the original plan, specifying to whom the lot, or any and what part of it had b(;en described as granted by His Majesty, and whether ihe same or any and what part thereof was ungranled, and also whai lots w^ere reserved as Crown or Clergy Reserves, or for other public purposes, and to whom such reserve or any part thereof had been leased ; and he was also, on or before the 1st day of July in each and every year thereafter, to transmit a list of all lots or parcels of land, specifying the quantity granted or leased, since the last list fur- nished by him ; and^ all the lands included in such list as granted or leased were liable to taxation whether oc- cupied or not. By the 13 & 14 Vic. c. 67, passed in 1850, the return® was to be made by the Commissioner of Crown Lands within thirty days after the first day of January in each and every year ; and by the 16 Vic. c. 182, s. 48 the re- turn was to include all lands in respect of which a license of occupation had issued during the preceding year. By the 27 Vic. c. 19, passed in 1863,» unpatented lands vested in or held by Her Majesty, thereafter sold or agreed to be sold, or located as a free grant, were e. Stc. 12. 7. Sec. 18. 8. Sec. 3d. 9. Sec. 0. PARTICUlrAR TITLES. 89 made subject to taxalion from the date of the ^ant, and all lots formerly granted were made liable to taxation from the 1st of January, 1863. The return of the Surveyor General or Commissioner of Crown Lands is the foundalion of the whole proceed- ing for taxation of lands,^ as no lands can be assessed which are not included in the schedule ;2 and it forms the basis on which the County Treasurer had formerly to keep an account for every parish, town, township, repu- ted township, or place within his district according to ihe list or schedule furnished by ths Surveyor General, in which account he was to enumerale particularly every Jot or parcel of land in each township, reputed township, or place, according to the schedule, and charge or credit it for the amount ol the taxes and rates payable or paid in respect of ii for each and every year ;^ and fron:i which he is now to furnish to the clerk of each local munici- pality the information necessary for the guidance of the assessors as to what lands are liable to be assessed.^ Before the statute required the return to be made in January, it was held that land returned in June for assess- ment, was liable for the taxes for the whole of the current year.* Land held by a Crown Land Agent's receipt and not by patent, lease, or license of occupation, and not occu- pied, was not, before the Ist of January, 1863, liable to assessment, though returned by the Commissioner of Crown Lands under 16 Vic. c. 182, s, 4S, as land to be assessed.^ til. . ' 3 •1. , ,,■ I- ... j: ■ !• •« tu '• 1. Doe d. Upper v. Edwards, 5 Q. B. U. C. 693. 2 Peck V. Monro, 4 C, P U. C. 368. 8. 69 Geo. 3, 7, s. 14 ; Peek v. Monro, 4 C. P. U. C. 363. 4. 13 & 14 Vic. c. 67, 8. 39 ; 16 Vic, c. 132, a. 48 ; Con. Stat. U. C. c. 66, 8. 109 ; 29 & 80 Vic. c. 68, a. 110 ; Out. Stat 32 Vic. c. 36, 8. 10». 6. Doe d. St^ta, v. Smith, 9 Q. B. U. C. 668. 6. Street v. Kent, H C. P. U. 0. 265 ; Street r. Bimcoe, 12 C P. U. C. 284 ; Street T. Lambton, 12 C. P. U. a 294. 90 I r 'A PARTICULAR TITLES. (6) Asaeasment. A question has been raised, what is the assessment, and by whom and when is it made? In Laughtenborough v. McLean,^ the Court of Com mon Pleas decided, that " the assessment is the rating which is made upon the assessment roll by the assessor, and that it is completed when the roll is finally passed. If this be so, then it follows that the entry as made upon that roll is the assessment which is to govern, and that all the other copies and entries ought to correspond with the primary roll and are only copies of and entries from it." The 59 Geo. 3, c. 7, required^ the Treasurer to keep an account with each lot or parcel of land and charge or credit it for the amount of the taxes and rates payable or paid in respect of it for each and every year. Where^ the rates and assessments upon any lot of land remained in arrear and unpaid for the space of three years they were to be increased in the proportion of one third ; if in arrear five years, then they were to be in- creased one half, and if suffered to remain in arrear for eight years, the amount of the arrears was to be doubled and the rates were thenceforth to be charged against the lands by the Treasurer, and levied in double the amount that would grow due according to the existing rate or assessment. In 1828, it was enacted,^ that no greater accumulation than fifty per cent, should be charged upon any lands on which the taxes should be paid before the 1st of July, 1829 ; and thereafter fifty per cent, and no more was to 7. U C. p. U. C. 175. 8 ^ec. 14. 9. Sec. 16. 1. 9 Geo. 4, c. 3, 8, 4. PARTICULAR TITLES. 91 be charged in all cases in which the taxes remained in arrear longer than five years. By the 13 & 14 Vic. c. 67, taxes accrued on any land were made^ a special lien on the land, having a prefe- rence over any claim, lien or incumbrance of any party except the Crown, and one which does not require re- gistration to preserve it, and which bears interest from the lime the taxes become due, which interest is to be deemed part of the taxes. ^ „ The 16 Vic. c. 182, required^ the Treasurer, on the 1st of May in each year, to complete and balance his books by entering against each parcel of land, the arrears, if any, due at the last settlement, and the taxes of the preceding year which may remain unpaid. If at the making of such balance it appeared that any arrear of taxes was due upon any parcel of land, the Treasurer was to add to the whole amount then due, ten per cent, thereon.* This was reduced to eight per cent.^ in 1866, and again raised to ten per cent, in 1868.^ The ten per cent, on arrears of taxes was calculated on the whole amount in arrear and due upon the land, and not merely on the amount of each year's assessment. In Gilespie v. The City of Hamilton, '^ the question was raised whether the ten per cent, authorized to be charged upon arrears of taxes, should be added to the amounts in arrear in each year, including the previous additions of ten per cent., or simply on the amount of taxes then in arrear, and it was held that it should be added to the whole amount. Draper, C, J., in deliver- ing judgment said, " I think the Legislature have used N U It ^ « j« Hi !■ 2 Sec. 38. 8. Sec. 61 ; Con. Stat U. C. c. 65, s. 116. 4. 16 Vio. c. 1S2, s. 63 ; Con. Stat. U. C. o. 65, 8. 121. 6. 29 & 30 Vic. c. 53, s, 126, 6. Ont. Stat. 3-JS Vic. c. 36, 8. 125. 7. 12 0. P. U. C. 428. 92 PAETICULAR TITLJCS. language very clearly indicating an intention that ten per cent, should be added every year, calculated on the whole amount which \s in arrear and due upon the lands at the time thy charge is made. In the present case the lands were liable to satisfy a given sum on the 1st of May, 1862, which sum included taxes for prece- ding years, and ten per cent, added therelo at the prece- ding first of May. To that sum whieh constituted the whole amount due on the lands, the statute, as 1 read it, directs that ten per cent, should be added." By the earlier acts (he amount of taxes which could be charged in one year was limited. • The 51 Geo. 3, c. 8, s. 6, provided that the sum levied should not exceed, in any one year, one penny in the pound. By the 59 Geo. 3, c. 7, the Justices of the Peace in Quarter Sessions were® not to raise more money than was required for defraying the public expenses of the District and this was to be apportioned among those "who were named in ihe rate roll;" which did not include the non-residenls. Where the Quarter Sessions did not assess certain lands, but the Treasurer lefi blank columns in his books for certain years, and charged of his own authority, at i.idefinile times, the maximum charge of one penny in the pound, under ihe idea that the statute had imposed that sum, which was generally known as the wild land tax, on all lands, a sale for the arrears of such taxes was held void.^ The 69 Geo. 3, c. 8, enacted, ^ that all unoccupied lots of land should be rated one eighth of a penny per acre annually lowaids defraying the expense of making and 8. Sec. 7. 8. Cotter v. Sutherland, 18 C. P. U. C. 402. 1. bee. S. PARTICULAR TITLES. 93 L maintaining roads, and in the rase just cited, the sale although made to satisfy sueh rale also, was held void, because illegal rales were included in the amount for which the land waf* sold. " By the 4 & 5 Vic. c. 10, s. 41 ; the amount which could be raised by assessment was mnde two pence in the pound, and for dij^trici purposes one penny half penny in the pound. An assessment under this act of so much per acre, instead of on the asset^sed value, has been held illegal. ^ Where the Surveyor General returned a tract of land as a single lot, it has been held that it must be assessed as one lot, though half of it may be in one concession and half of it in another,^ and where several lots are included in one grant, but described by separate num- bers, a portion of each lot must be sold to pay the taxes due upon such lot, and not a portion of the whole block, beginning at the boundary from which the lots are num- bered, for the taxes du>i upon the whole.* (c) Treasurer's Return of Lands in Arrear. By the 6 Geo. 4, c. 7, passed in 1825, provision was made ** for levying under certain restrictions, the assess- ments which may remain in arrear, by the sale of a portion of the lands on which the same may be charged." That act provided' that the Treasurer of each District should at the next Quarter Sessions after the l«t of July 1828, present to the Justices in Quarter Sessions an ac- curate account of all lands in the district upon which the assessment or any part' thereof v/as in arrear for the space of eight years, specifying the lot or parcel of land 2. Doe d. McGUl v Langton, 9 Q. B. U. C. 91 ; WilHams v, Taylor, 13 C. P. U. C. 219. 3. Doe d. Upper v. Sdwarda, 6 Q. B. U. C. 694. 4. Munro v. Gray, 12 Q. B. U. C. 647 ; McDonald v. Robllard, 23 Q B. U. C 106 ; Ridout V. Ketchum, 6 C. P. U. C. 60 1 Black v. Harrington, 12 Or 176; Christ ? v. Johnvton, Ibid, 634. 6. See. 6. ■>' ■!.■. Q IP 94 PARTICULAR TITLES. by number, concession and township, or otherwise, as the same appealed ir ihe scliedule furnished to the Treasurer, and also^ the amount due for assessment thereon ; and should also at the Quarter Sessions next . after the 1st of July in each year thereafter furnish a like account. The Treasurer was also,^ within one month after ren- dering ilia account, to insert in the Upper Canada Ga- zette, and in some public newspaper in the district, a list of all the lots returned by hira in his account, as lia- ble to sale, and if no newspaper was published in the district, he was, within the same time, to affix a list in some conspicuous place in each 'ownship. By the 13 & 14 Vic. c. 87, passed in 1850, the Collec- tor, if any taxes remained unpaid, was required, ^ when returning his roll, to deiiter an account of all the taxes remaioing due, showing opposite each separate assess- ment the reason why he did not collect the same, by inserting " non-resident," or, ** property to distrpin," to make oath that the sums mentioned in the account re- mained unpaid, and that he had not by diligent enquiry been able to discover any goods or chattels upon which he could levy ; and such account was made sufficient authority for the Treasurer lo proceed to sell the lands. The Treasurer was thereupon^ to enter in a book kept for the purpose, a copy of the roll so far as it related to the lands of non-residents together with the taxes charged upon such lands ; and he was within one month after receipt of the roll to address a circular letter through the post to the owners of the several lots stating the amount due, and calling for payment, and if he was unable to satisfy himself as to the owner of any lot or where be 0. 6iMi.6. 7. Seo.O. 8. Seo 43. 0. »ec.4i, 44. PARTICULAR TITLKS. 95 resided, he was to put in the Official Gazette a list of the lands setting forth ihe tr ^\ amount due on each lot, and calling for payment ; charging to the land the expense of publication. The act also required^ the Treasurers of Counties, on or before the Ist of January, 1851, to make out and sub- mii to the Municipal Counci! of the County a list of the lands in their respective counties on which any taxes re- mained unpaid, stating the number of acres in each lot or part lot, the number of years for which it was in arrear for taxes and the amount of taxes due, together with the names of the owners so far as such Treasurer had been able to ascertain them and the amount of such arrears were to be added to the assessment roll for 1851. The 16 Vic. c. 182, s. 47 required a similar return of lands on which the Collector had been unable to collect the taxes, to be made to the Township Treasurer and it was made^ the duty of the latter officer to return a cor rect copy of the roll to the County Treasurer. By this act^ the necessity for a return to the County Council of lands in arrear for taxes, as a preliminary to their sale, seems to have been done away with, and the Treasurer was empowered whenever a portion of the taxes had been due on any lot for five years, to issue a warrant for sale by the Sheriff, but the Council could direct that no warrant should issue until some portion of the arrears were due for a period longer than five years. This course continued to be pursued until 1866, when the 29 & 30 Vic. c. 53, which substituted the County Treasurer for the Sheriff as the officer to sell lands for ar- rears of taxes was passed. This act requires* the Trea- i, I. 1. Sec. 46. 2. See. 49. S. See. 66 ; Clos. SUt. U. ^ e. 66, m. 128, 124. 4. 8eo. 129. 96 PARTICULAR TITLES. mi- , Mr attL . #»■ U «.iv surer to submit to the Warden a list in duplicate of all lands liable to be sold for taxes with the amount of arrears against each lot sel opposite the same. To each of these lots if is made the duty of the Warden to affix the seal of the Corporation and his signature, and one of them is to be deposited with the Clerk of the County, and the other returned to the Treasurer with a warrant annexed under the hand of the Warden and seal of the County, commanding him to levy the arrears. In an ejectment suit by a purchaser of land sold for taxes under 6 Geo. 4, c. 7, it ha? been held* necessary to prove that a return was made of the land having been the proper time in arrear for taxes, and that the writ to sell was grounded on this return. The books of the Treasurer showing the Ipnd to be in arrear, are sufficient proof of the fact of arrear, but it has been doubted whether the warrant to sell would be so ;® and that the taxes were in fact in arrear for the proper time.'' « An extract from the Treasurer's books showing the taxes to be unpaid, is not sufficient evidence of the fact.® (d) Witt to Sell. By the 6 Geo. 4, c. 7, upon the Treasurer^ laying before the Quarter Sessions the list of lands in arrear for taxes, it was made ^ the duty of the Clerk of the Peace in each district to make out a warrant for levying the assessment due, specifying in the writ the particular lot 6. Doe d. Bell v. Beaumore, S Q. B. O. S. 843. e. Hall V. Hill, 22 q. B. U. C. 578 ; 2 Gr. & Ap. 669. 7. Due d. Upper v. Edwards, 5 Q. B. U. C. 6M ; Doe d. Sherwood, v. Hat^eson, r Q. B. U. C. 821 ; Harboum v, Boushey, 7 C P. U C 464 ; Errington v Durable, 8 C. P. U. C. 66 ; AUan v, Fisher, 18 C. P. U. C. 68 ; Myers v. Brown, 17 C. l\ U. 0. 807 ; Jones T. Bank of Upper Canada, 18 Gr 74. 8 Munro v. Qrey, 18 Q. B. U. G. 647. 9. Sec. 6. Am d60« 7. t PARTICULAR TITLES. 97 or parcel of land, and the amount due thereon, which warrant was to be signed and sealed by the Clerk of the Peace, directing the Sheriff of the district to levy the amount therein stated to be due, together with certain fees imposed by the Act, by sale of such portion of the lands and tenements upon which the assessments were chargeable, as should be sufficient for that purpose, pro- vided there was no distress upon the lands from which the same could be made, and if there was such distress, then to levy the same by sale of the distress. This^ writ was to be made returnable at the third Quarter Sessions after issuing the same, and the Sheriff was directed to have the moneys levied under the writ at the said Court. The writ to sell continued to be issued by the Clerk of the Peace until 1850, when the 13 & 14 Vic. c. 67, enacted,^ that the County Treasurer should, within thirty days after the Collector made his return, issue a wairant under his hand and seal directed to the Sheriff of the County, commanding him to levy on the lands of non- residents for the amount of taxes remaining due thereon and his costs. The 16 Vic. c. 182, s. 55, empowered the Treasurer to issue the warrant whenever a portion of the tax on any land had been due for five years, and this continues still to be the law.* i.p ii. j; It . In the warrant, the Treasurer was required* to dis- tinguish such lands as had been patented from those which were under a lease or license of occupation, and of which the fee remained in the Crown, and this con- tinued to be ihe case unti! 1866. The 29 & 30 Vic. c. 53, s. 129, contains no similar provision. 2. Sec. 8. 8. Sec. 48. 4. Con. Stat. V. 0. c. 6B, a. 124 ; 29 k 80 Vic. c. 63, s. 129 ; Ont Stat. 6. 16 Vic; c. 182, s. 6«; Con. Stat. U. C. c 66, b. 126. 7 I Vic. c. I J -ir 98 PARTICULAR TITLES. The writ to sell must be founded upon the Treasurer'^ return ;® and it must be under the seal as well as the signature of the proper officer, and if not sealed, all sales under it are void. "^ A mistake in representing the taxes as due from the 1st of July, 1820, to the Ist of July, 1828, in place of from the 1st of January to the 1st of January of these years, has been held not important, the taxes being in fact due for the full period of eight years. ^ A writ issued in 1837, and postponed by 1 Vic. c. 20> was held properly acted upon in 1839.^ The omission, since 1853, to distinguish, in the writ, whether the lands were patented or under lease oi license of occupation, has been held fatal to it ; and to a sale under it \^ but describing the lands as " all pa- tented *' is sufficient. 2 Describing the lands to be sold, in a schedule which is incorporated with the warrant, so as to be a part of it, is sufficient. ^ The writ should show the particular land that is to be sold ; there being confusion and doubt in this respect will avoid the sale ;* but if the identity can be established it is sufficient.^ The writ can issue only after the full period is past for which the land can be sold.^ Where a new county is created, and taxes become due to it, and taxes are also and were due before the separatiqn, the writ to sell goes to the Sheriff of the new county. to sell for the arrears due both counties."^ 6. Doe d. Bell v. Reaumore, 3 Q. B. O. S. 843 ; Errington v. Dumble, 8 C. P. U. C 65. 7. M-Jfgan v. Quesnel, 26 Q. b U. C. 689. 8. Doe d. State v. Smith, 9 Q. B. U. C. 668. 9. Todd V. Werry, 16 Q B. U. 0. 614 ; Hamilton v. McDonald, 22 Q. B. U. C. 186^ 1. Hell V. Hill, 22 Q. B. U. C. 678 ; S. C. 2 £r. ft App. 669. 2. Brooke v. Campbell, 12 Or. 626. 3. HaU T. Hill, 22 Q- B. U. C. 678. 4. Townsend v. Elliott, 12 C P. U. C. 217. 6. McDoueU v. McDonald, 24 Q B. U. C. 74. 6. Kelly v. M toklem, 14 Grant, 29. 1. Doe d. MountcaMbel V. Grover, 4 <2. B. U. 0. 28. PARTICULAR TITLES. 99 (c) Distress. In the case of sales under Ihe earlier tax acts it is necessary to show thai there was no sufficient distress on the premises.® Under the 6 Geo. 4, c. 7, s. 7, ihe warrant to be issued by the Clerk of the Peace directed the Sheriff to levy the amount due, by sale of such portion of the land as should be sufficient for that purpose, provided there was no distress thereon from which the same could be made, and if there was such distress, then by sale of the dis- tress. The Sheriff was not obliged to look for a distress on the land between the time he first offered it for sale, and the time when an adjourned sale was had, and a distress in fact being upon the land between these two periods did not invalidate the sale.^ The old law as to the omission to distrain invalidating a sale seems to have been altered by the 13 & 14 Vic. c. 67.1 The 16 Vic. c. 182, enacteda thai it should be lawful for the Treasurer, whenever he should be satisfied that there was a distress upon the lands of non-residents in arrear for taxes, to issue a warrant under his hand and seal to the Sheriff, who should thereby be authorized to levy the amount due upon any goods and chattels found upon the land, in the same manner, and subject to the same restrictions, as referred to distress made by a Col- lector. ^ The 68lh section required the Sheriff, if at any time after the receipt of the warrant to sell, he had good rea- I.- i Hi ' 8. Doe d. Bell v. Reaumore, 3 Q. B. O. S. S4S ; Doe d. Upper t. Edwards 6 '2. B. U. C. 694. 0. Hamilton v. McDonald, 2S Q. B. U. C. 186. 1. Kamilton v. McDonald, 82 Q. B. U. C. 130 ; McDonell V. McDonald, 24 Q. B, U. C.74. 2. See. 64 ; see also Con. But IJ. C. o. 66, s. 122« 8. Seos. 42, 43 and 44. !l» 100 PARTICULAR TITLES. '{■ son to believe that there was a distress upon any parcel of land included therein, to levy the arrears of taxes and the costs by distress and sale of any goods and chattels found on the land. To this section a proviso was added that no subsequent sale of any such parcel of land by the Sheriff should be held illegal or invalid by reason of there having been any goods and chattels thereon before or at the time of the sale, and the SherilT having neglec- ted to levy the tax by the distress and sale of the same. The 27 Vic. c. 19, passed in 1863, provided* that the Treasurer and Sheriff should not be required to inquire before sale of lands for taxes whether there was any dis- tress upon the lands, but the more recent statutes* con- tain a provision as to the Treasurer similar to that con- tained in the 16 Vic. c. 182, s. 64, except that the war- rant issued by the Treasurer is to be directed to the Col- lector of the local municipality instead of to the Sheriff. It was not made the duly of the Treasurer to search for a distress on lands ; but if satisfied that there was a distress, it would be necessary to allege and prove that he had notice of the distress.® Even the neglect of a Collector whose duty it was to search for distress, has been held not to invalidate a sale subsequently made of the land for arrears which might in whole or in part have been satisfied by such distress.'' The old law was otherwise, especially if it could be shown that there was a sufficient distress upon the land at the time of the sale.^ (/) Advertisement. The 6 Geo. 4, c. 7, required the Sheriff,^ within one 4. Sec. 4. 6. 29 & 30 Vic. c. 58, 8. 127 ; Ont. Stat. 32 Vic. c. 86, s. 126. 6. Foley V. Moodie, 16 Q, B. U. C 264. 7. Allan v. Fisher, 13 C. P. U. C. 63. 8. Dobble v. Tully, 10 0- P. V. C. 432 ; but see Doe d. Powell v. Rorison, 2 Q. B. U. C. 201 ; Doe d. Upper v. Edwards, 6 Q. B. U. C. 694; Stafford v. Williams, 4 Q. B. U. €. 488 ; Fraser v. Mattice, 19 Q. B. U. C. 160. 9 Socio. PARTICULAR TITLES. 101 month after receiving the writ, to insert in the Upper Canada Gazette, and in all the printed newspapers in tiie d strict, a notice of the time and place at which he would a' tend to sell the lands, and if no newspaper was pub- lished in the district, then the notice was to be affixed on the door of the Court House, and also in two or more places in each township. B} the 13 & 14 Vic. c. 67, the sale^ was t) be adver- tised once in each month for four successive months, in some newspaper of the County, if any such, and if none, then in a newspaper in an adjacent county, and the last insertion of the advertisement was required to be at least one week prior to the day of sale. The Sheriff was also required^ to post a notice similar to the advertisement in some convenient and public place in the county, three weeks before the time of sale. These notices^ were to state the names of all owners known to the Sheriff, with the total amount of taxes assessed on their lands re- spectively, and when the owners were not known, the advertisement was to state the total amount of taxes upon the several lots or half lots. The 16 Vic. c. 182, required the Sheriff,* immediately upon receipt of the Treasurer's warrant to prepare a list of all the lands included therein, and the amount of arrears due on each parcel, and cause the same to be published for the space of three months in the Govern- ment Official Gazette, and in some one newspaper pub- lished within the county, or if none published in the county, in some newspaper published in an adjoining county. In this advertisement lands patented were to be distinguished from those the fee of which was in the ■I i! II >, » •>!' 1. Sec. 60. 2. Sec. 61. 8. Sec. 62. 4. Sec. 67. 102 PARTICULAR TITLES*. A -9^ . .'^^ ^ 4 Crown, ^ and it was to contain^ a notification that unless the arrears were sooner paid, the Sheriff would proceed to sell the lands for the taxes, on some day named in the advertisement, which day was required to be more than three months after the first publication. A notice similar to the advertisement was also to be posted in some con- venient and public place at the Court House of the county, at least three months before the time of sale.'' Under the recent acls^ the advertisement issued by the County Treasurer, w^ho is now the officer entrusted with the sale of lands for taxes, is to contain similar in- formation as to the amount of arrears, a notification that the lands will be sold on a given day unless these are sooner paid, and to distinguish the lands as patented or unpatented. In addition the advertisement is to state in a separate column the proportion of costs chargeable upon each lot for advertising, and for the commissions allowed to the Treaurer. The advertisement is by these acts^ to be published four weeks in the Official Gazette, and once a week for thirteen weeks in some newspaper published in the county, or in an adjoining county, as the case may be. It is also expressly enacted^ that the day of sale shall be more than ninety-one days after the first publication of the list." This section was probably introduced on account of the doubt raised in the case of Connor v. Douglas. ^ In that case, it was held by the Chancellor (and afterwards approved by the Court of Error and Appeal) that publi- cation in the Canada Gazette for thirteen weeks, from 6. Sec 58. 6. Sec. 57. 7. Sec. 57. 8. 29 & 30 Vic. c. 53, ss. 133, 134 ; Ont. Stat. 32 Vic. c. 36, as. 132, 133. 9. Sec. 133; sec. 132. 1. Sec. 135 ; sec. 134. 2. 16 Grant, 436. PARTICULAR TITLES. 103 and including the Ist of August, to and including the 24lh October, 1857, though not an advertisement for ihree months, which would have required the advertisement to be continued till and to include the 31st of October, did not render the sale invalid. In Jarvis v. Brooke^ it was held that the omission to advertise the sale in the county local paper, the adver- tisement being regularly published in ihe Official Ga- zette, did not invalidate the sale. This decision was arrived at because such an omission would not, on com- mon law principles, avoid a sale under execution. The Court of Common Pleas, however, in Williams v. Taylor,* held that the omission to advertise in a local paper under the special irovibions of 16 Vic. c. 183, ss. 7 & 8, avoided the sale ;; saying, " The omission of either of thcvse advertisements interposes an insuperable obstacle to the applicalion of the remedial portion of the act in favour of purchasers at such sales." In the later case of Hall v. Hill,* the Court of Queen's Bench, speaking of Williariis v. Taylor, said, "That de- cision, though under a different statute, was upon a case very analagous in principle, and if it were necessary for the decision of this case, we should, as at present advised, arrive at the same conclusion." ! i* ' I ■ I (g) Sale. By the 6 Geo. 4 c. 7, no^ sale was to take place in less than six months from the delivery of the v/rit to the Sheriff', nor was any sale to be made out of the township in which the land was situate, unless the township was eo thinly inhabited as to have no meeting held within it for the election of parish officers, in which case the 8. 11 Q. B. U. C. 299. 4. 13 C. p. U. 0. 219. £. 22 Q. B. U. C. 678. 5. Sec. 11. 104 PARTICULAR TITLES. 5- il . ii f 1 '•Ml* t . '! -* '^'^ sale might take place in the township to which the same might be annexed for the purpose of holding its annual town meeting. The'' mode of selling was to be by public auction, and the assessment in arrear and the expense attending the writ was to be declared, and the person who offered to pay the assessment and expense for the least portion of the lands was to be considered the purchaser. In selling, the Sheriff was to expose the lands for sale in the following manner ;® " He shall begin at the front angle on that side from whence the lots are numbered, and measure backward, taking a proportion of the width corresponding in quantity with the proportion of such particular lot, in regard to its length and breadth, ac» cording to the quantity required to make the sum de- manded ; and at every subsequent sale of a portion of the same lot or parcel of land, under this act, shall proceed to take a tract of equal width as the former, measuring backward from the limits of the tract last sold." Where the Sheriff could not, from the position or description of the land, pursue ihe mode pointed out above, he was to sell such portion of the lot as appeared to him most for the interest of the proprietor.^ He had also^ power to adjourn the sale from day to day, giving pub- lic notice thereof, and if any person did not pay the amount of his purchase on the day of sale the Sheriff could re-sell on any other day to which the sale was adjourned. Several alterations were made in T837, by ihe 7 Wm. 4, c. 19. The sale2 of lands for arrears of taxes was to take place in the Town in which the General Quarter Sess- 7. Sec. 12. 8. Sec. 13. 9. Sec 14. 1. Sec. 16. 2. Seal. PARTICULAR TITLES. 105 to of lie nt ions for the District were held, on the second (fay of the sitting of the Court, at or near the Court House. The land was to be put up for sale at an upset price of two shillings and sixpence an acre, and if there was no bidder at that rale, then the SheriflT was to proceed according to the former act,^ at the next Court of Quar- ter Sessions after the expiration of the six months' notice required by law. The fifth section made it lawful for the Sheriff to put up and adjudge to the purchaser such part of the lot as he might in his discretion think best for the interest of the proprietor. The 13 & 14 Vic. c. 67, required the* Sheriff to sell by public auction, so much of the lands as should be sufficient to discharge the taxes, with the interest there- on, and all lawful charges incurred in and about such sale and the collection of the taxes, selling in preference such part of the land as he might consider it most for the advantage of the owner to sell first. The 16 Vic. c. 182, contained' a similar provision. Where the Sheriff sold land of which the fee was in the Crown, he was to sell only the interest therein of the lessee or locatee.^ The recent acts'^ which substitute the Treasurer for the Sheriff as the officer who is to sell lands for taxes, contain provisions exactly the same as to selling such part as the Treasurer may consider best for the owner to sell first. These acts further declare that " In offering such lands for sale, it shall not be necessary to describe particu- larly the portion of the lot which shall be sold, but it 3. Geo. 4. c. 7. 4. Sec. 63. 6. Sec. 59 ; and see Con. Stat. U. C. c. 65, s, 137. 6. 16 Vic. c. 182. 8. 56 ; Con Stat V. C. c. 55, s. 138. 7. 29 & 30 Vic. c. 63, s. 139 ; Ont Stat. 32 Vic. c 30, s. 138. r i. 106 PARTICULAR TITLES. 51 shall be sufficient to say that he will soil so much of the lot as shall be necessary to secure the payment of the taxes due," This clause was probably insc. ted because V. C. Mowat had held^ it necessary that the SlierilF should state to intending purchasers what portion of the lot was being offered for sale. ■ The sale of a whole lot which lay in two concess- ions, for an arrear of taxes alleged to be due upon one half, has been held illegal, because there was no such distinct half to be assessed.^ The assessment should have been on the whole lot. A sale for a total charge of £5. lis 8d, of which only £1. 8s. had been legally imposed, was held to be wholly void ;i but the good rate being separable from the bad, held not to defeat a distress in toto.2 In Allan v. Fisher,^ however, Draper, C. J., though he considered he was bound by the authorities on the joint, said, I have felt a difficulty in holding a sale en- tiisly void, on the ground that the amount directed to be levied was larger tlian wa** properly due." A purchaser procuring the whole lot to be knocked down to him, by requesting the bystanders not to bid against him, as he wanted to confirm his title by pur- chasing it in, acted improperly, and the sale so conduc- ted is void.* In Henry v. Burness,^ where the conduct of the She- riff in selling the whole of a valuable lot of land for a 8. Kiiagjjs V Ledyard, 12 Gr. 3?0 9. Doe d. Upper v. Edwards, 5 Q. B. U. C. 594 ; Monro v. Gray, 12 Q. B. TJ. C. 04v i Bee also McDonald v. Robillan], 23 Q B. U 0. 105 ; Laughtenborough v. McLean, 14 C. P, U n. 175 ; Ridout v. Ketchum, 6 C. P. U. C. 55 ; Black v. Harrington, 12 Gr, 176 ; Christie v. ^^huston, 12 Gr. 634. 1. Doe. d. McGill v. Langton, 9 Q B. U. C. 91 ; Irwin v. Harrington, 12 Gr. 179. 2. Corbett v. Johnston, 11 C. P. U. 0. 817. 3 13 C. ^. U. C. 72. 4. Todd •". Werry, 16 Q. B. U. a 614. 6. 8 Cr. 846. PARTICULAR TITLES. 107 e ■n triflin£^ amount of taxes was impeached, counsel con- tended that the Sheriff could not be taken to know the value of a whole lot necessarily so greatly exceeded the arrears of taxes that a sale of the whole was improper. But V. C. Spragge said,« " This implies that the She- riff is not bound to acquaint himeiclf with what he is selling ; that he may remain properly ignorant of the improvements, the quality or the soil, and of every par- ticular beyond the number of the lot and the assumed quantity. I by no means concede that he can properly be ignorant of these particulars; he has peculiar facili- ties for becoming acquainted wilh them ; and if he had not, still if it be his duty to sell for the best price, as I take it to be, he cannot discharge that duly if so utterly ignorant of what he is selling as not to know whether it is worth £2 10s. or £500. Besides, the statute, in making it the duty of the Sheriff to sell not only as little as possible, bul that part which is least injurious to the land-owner, seems to contemplate his makir himself acquainted wilh the land he is selling." In that case, combination among the purchasers was also relied on as a ground for setting aside the sale. On that head the learned Vice Chancellor said, " I do not mean to say that actual combinatioi> is necessary to in- validate such a sale. The prevention of competition by any undue means, I apprehend, would be sutRcient, because against public policy, and a fraud upon the sale."7 f '. Where the writ to sell was delivered to the Sheiiff when in office, but he did not sell till he was out of office, the sale was held invalid, as it was not shown that he had while in office, begun to act upon it.^ 6. Ibid, R57. 7. ?ee also Davis v. Clark, 8 Gr. 358. 8. McMillan v. McDonald, 20 Q. B. U. C. 454. t 108 PARTICULAR TITLXS. I It hae been doubted whether land, improperly assessed as non-resident land, when it was in fact occupied, can be legally sold for arrears. ^ Where taxes are due to an old county, and taxes be- come due to a new county after separation, the sale for both arrears should be m?.de by the Sheriff of the new county where the land lies.' (Jk) Payments. None of the acts in express terms authorize the She- riff to receive payment of the taxes in arrear alter receipt of the warrant to sell. The 53rd section of Ihe 13 & 14 Vic. c. 67, directs the Sheriff to sell " if no person shall appear to pay the taxes at the time and place appointed (or ihe sale." And in the subsequent acts,^ the words used are, " If the taxes shall not have been previously collected, or if no person shall appear to pay the taxes at the time and place appoinied for the sale." These expressions imply that the Sheriff may receive payment, and accordingly it has been held that a payment of taxes to the Sheriff, while he had the warrant to sell, is good. 3 After the sale takes place the owner has still a period allowefl for redeeming. This was at first twelve months,* then it was extended to three years,^ and again reduced® to "one year from the day of sale, exclusive of that day," at which it has since remained.'' 9. Allan v. Fisher, 13 C. P. U. C. 63. 1. Doe d Mouutcanhel v. Grover, 4 Q. B. U. C. 23. 2. 10 Vic. c 182, 8 69 ; Con. Stat. U. 0. o 55, s 137 ; 29 A 30 Vic. c. 63, 8. 139 ; Ont. Stat. 32 Vic. c. 80, a. 138. 3. Doe d. Sherwood v. Mattheson, 9 Q, B. U. C. 321 ; Jarvis \. Cayley, 11 Q. B. U. C. 282 ; Jarvis v. Brooke, 11 Q, B. U. U. 299. 4. 6 Geo. 4,0. 7,8. 18. 6 13&14Vic. 0.67,8. 54. 6. 16 Vic. 182, 8. 64 ; Con. Stat. U C. c. 66, 8. 148. 7. 29 & 30 Vic. c. 63, 8. 149 ; Ont. Stat. 32 Vic. c. 30, a. 148. PARTICULAR TITLES. 109 ed an !W After the sale of a whole lot for taxes, the Treasurer may receive payment of the taxes in redemption of a part of il, if the lot had been in fact subdivided, and the Treasurer determines in good faith that such part was a distinct division.^ If the Treasurer can take nolica of land granted, though not returned as such, he must take notice of the particular part of the lot so granted, and he must apply the payments made to him on the part so granted.^ (i) Description of Lands. The 6 Geo. 4. c. 7, having fixed the manner in which the Sheriff was to ascertain the exact portion sold, by beginning to measure it from a given point and taking a proportif^nate width of the lot, a description of thirty acres of Lot 15, &c., to be measured according to the statute^ has been held a sufficient description. ^ The subsequent act 13 & 14 Vie. c. 67, which re- quired the Sheriff to s(»Il the part most advantageous for the owner, provided that he should state distinctly in the certificate to je delivered to the purchaser, what part of the lot was sold, or that the whole lot was sold, as the case might be ; and the deed given to the purchaser was^ .o describe the land by its situation, boundaries and quantity. In the 16 Vic. c. 182, ss. 59 & 65, the words used as to the certificate and deed are the same as those in the 13 & 14 Vic. c. 67, ss. 54 & 57. The more recent acts'^ require the Treasurer to, "give 8. Payne v. Goodyear, 26 Q. B. U. C. 448 ; Brooke v. Campbell, 12 Gr 526. ». Peck V. Monro, 4. C. P. V- 0. 86:}. 1. Fraser v. Mattice, 19 Q.^B. U. 0. 150 ; Mclr.tyre v. G W. Railway Co., 17 Q. B. U. 0. 118. 2. Sec. 57. 8. 29 fc 80 Vio. 0. 63. 8. 147 ; Out. Stet. 32 Vic. c. 36, b. 146. : I ill f no PARTICULAR 'ArhtS. a description of the part sold with sufficient certainty, and if Jess liian a whole lot, then by such a general description as may enable a surveyor to lay oft* the land sold on the ground." A description of the land sold by the Sheriff as " eighty-nine acres of the south part of Lot twenty-five, &c.," would be insufficient, for want of the proper bound- aries defining the precise locality.* {k) The Deed. Where lands were sold under the 6 Geo. 4, c. 7, but no deed was made of them while that act was in force, it was held that no deed could be made after the repeal of this act in 1851, as no provision was made for such a case,5 and the same thing was .decided as to sales made under 13 & 14 Vic. c. 67,^ A deed may now be made by the successor of the Sheriff who sold."^ Formerly no time was limited within which it was necessary to register a deed of land sold for taxes, but it is now necessary to register it within eighteen months after the sale.® The same acts require all deeds on tax sales, before the passing of the . acts, to be registered within one year after the passing of the acts. In the case of Cotter v. Sutherland,'^ an objection was taken which the Court said struck at the root of every tax sale resting upon a rate imposed before the General Assessment Act of 1850, and invilidated every one of them. This objection was that no Court of Quarter U'» \iM 4. McDonell r. McDonald, 24 Q. B. U. G. ''4 ; me also Taylor v. Foster, 26 Q. B. U. U. 406 : KnoggB V. Ledyard, 12 Gr. 320 ; Fraser v. Mattioe, 10 Q. B. U. 0. 160. 5. Bryant t. HlII. 23 Q. U. U. 0. 96. 6. McDonald r. McDonell, 24 Q. B. U. C. 424. 7. 27&28Vio.c.S. 8.4i. * 8. 20 Vic. 0. 24, s. 67 ; Ont. Stat. 31 Vic. c. 20, 68. 8. 18 0. P. U. C. 867. PARTICULAR TITLES. Ill eral and as but Sessions ever imposed a rate of any kind upon wild lands, but that the Treasurer of his own motion, charged every wild lot one penny in the pound of its statutable value, under the idea that the -statute directly imposed that tax upon the land. In the same case many points of importance were decided for more particular notice of which reference must be made to the very able and exhaustive judgment delivered by Mr. Justice Adam Wilson. 10. Sheriffs Deeds. Where a title is derived through a sile by a Sheriff under an execution, the purchaser's solicitor must see that there is a judgment duly entered up of record ;i tha^ the writ under which the Sheriff sold was valid on the face of it j^ and that it was acted on while current. ^ A purchaser under a writ valid on its face will be pro- tected even through the idgment under which the land was sold should aflerwards be reversed for error appear- ing on the record.* The conveyance from the Sheriff is prima facie evi- dence that the writ was delivered to him, that he took the lands in execution, and sold them.^ A purchaser is not bound to enquire whether a writ against goods was properly returned " nulla bona " before the writ against lands was issued.^ Neither need he enquire whether the lands were duly advertised or not, as errors and defects in the advertisements, either in the Gazette or 1. Doe d. Boulton v, Ferguson 6 Q. B. U. C. 616 ; McDonell v. McDonell. 9 Q. B. U. C. 259 ; but see, Douglass v. Bradford. 3 0. P. U C 459. 2. Doe d. Hagcrman v. Strong, 4 Q. B. U.O. 610. 8. Doe d. Greenshields v. Oarrow, 6 Q. B. U. 0. 287 ; McDonell v. HfiDonell, 9 Q B. U. 0. 259 ; Gardiner v. Juson. 2 Er. k App- IbS. - 4. Doe d. Hagerman v. Stroug, 4 Q. B. U. 0. 610. 6. Doe d. Spoflord v. Brown, 3 Q. B. U. 0. 0. S. 90 ; Mitchell v. Greenwood, 3 C. P. V. C. 465. 6. Doe d. Myen t. Myers.g Q. B. U. C 403. \\ 'il 118 PARTICULAR TITLES. local papers, will not affect the purchaser's title, even if he be one of the execution creditors. A sale was duly advertised in a local paper for three months before the 27th of August, 1864, and an advertisement in some particulars incorrect was inserted in the Gazette of the 11th of June, 1864, and four next issues, the errors being corrected in the sixth insertion, all these advertisements were of a sale on the 27th of August, 1864. On the Ist of October following and in the five next numbers of the Gazette the sale was advertised for the 12th ol No- vember, not as a postponement of the previous sale, but this advertisement was not published in a local paper, and although a noiice was put up on the door of the Court House, it was not shewn that it was continued there for three months. Under these circumstances the Court of Queen's Bench held''^ that these advertisements were not a compliance with the statute,® but that the defects would not affect the purchaser's title. In that case C. J. Draper said, " There is no decision that a Sheriff's sale under execution of land is invalid by reason of erroneous or defective advertisements in the Gazette or the local newspaper ; and the language of the lalo Chief Justice in Jarvis v. Brooke^ shows that there have been decisions (though unreported) the other way, where lands have been sold in execution, and though we might think that the purchaser could have little reason to complain where he was one of the exe- cution creditors, and also the attorney on record, if the proceedings were held hugatory by reason of any irregularity or omission in advertising, we think this no reason for incurring the risk of shaking other titles where the purcheser has had no such necessity or oppor- tunity for watching the proceedings. We think he 7. Pateraon v. Todd, 2^ Q. B, U. C 20tJ. 8. Con. SUt. U. C o 22,8. 267. 9. U Q. B. U.C. 299 ; and see Jan-ls v. Cayliy, 11 Q. B. U. C. 289 ; Doe d. Diwett V. ilcLeod, 8 Q. B. U. C. 297. PARTICULAR TITLES. 113 en as re ne [the ng nts 1st of o- but 36 r, the aed the mts the that at a by ought not, by a decision given for the first time after so many years, to deter purchasers at SherifTs sales by holding it to be their duty to examine into everv step of the Sheriff's proceedings under a valid writ su^^ ,ed by a valid judgment." The purchase* fihould satisfy himself that the writ was acted upon while current, as nothing can be done under an execution which has ceased to be current; unless for the purpose of perfecting what had been com- menced while it was in force. ^ . Doe d. Greensfaields v. Oarrow, 6 Q. B. U. G. 237 ; McDonell v. McDonell, 9 Q. B. V. C' 259 Gardner v. Jusou, 2 Err. & App. 188. n CHAPTER V. PRODUCTION AND CUSTODY OF DEEDS. 1 Attested Copies. The title having been approved of, the next question is, whether deeds relating to the property will be handed over to the purchaser on the completion of the contract. Formerly when the vendor warranted the title against all the world he was allowed to retain the deeds, the better to enable him to defend the possession which he thus took upon himself to vouch, ^ But now the vendor covenants for his own acts and deeds only, and not for the defaults and incumbrances of former proprietors; these the purchaser takes upon himself.' One consequence of the purchaser taking the title on himself, is a right to the possession of the title deeds provided they relate exclusively to the land sold, but if they relate to other property which is retained by the vendor, though of smaller value, the practice is, that the vendor is entitled to retain the deeds, but then he must give the purchaser attested copies of all' the deeds ab- stracted which were not of record sufficient to make a title, at his own expense, and execute a covenant to pro- dace them at the purchaser's expense, unless there be an original stipulation to the contrary.'^ Possibly, upon a sale under a decree of the (^ourt of Chancery, a deposit of the deeds in the office of the Master, or of the Clerk of Records and Writs, might be S. Co. Lit. 6 0. t. Cor. Con. Et. 114. 4. Got n. Bt. IIS. PRODUCTION AND CUSTODY OF DEEDS. 116 snfHoient to preclude the right to attested copies.^ In Dare v. Tucker,^ Lord Eldon, on making an order for the delivery of attested copies, qualified his order by the expression, ** Unless you leave the originals, or make some other proposal in the Master's Office. The next question is, of what deeds and documents is the purchaser entitled to attested copies ? The answer is, only of such as are necessary to make a title, and not to any which are of record. In reference to documents on record, the rule is thjit the purchaser is not entitled to copies of these, as he can, by applying to the record which is always extant, obtain more authentic evidence than he can by an unsworn copy.'^ i^.nd a purchaser is not entitled to copies of any instruments which are produced merely to negative a pos- sibility, and which he could not have compelled the vendor to produce had they not been in his possession.® In England the Prerogative Court of Canterbury and other Ecclesiastical Courts are not Courts of Record, so attested copies of wills or other instruments, registered in these Courts may be required at the vendor's expense ; unless it was otherwise provided for at the time of pur- chase.® In this Province the Surrogate Courts in the va- rious counties are Courts of Record by statute,^ but the Court of Probate prior to its abolition was not a Court of Record, nor were the Surrogate Courts, until the passing of the 22 Vic. c. 9C. A purchaser is, therefore, entitled, in the case of a will proved before the 16th day of August, 1858, to call for an attested copy. irt 6. D»rt on Vendort 772. 6. «. Vea. 400. 7. Coy. Con. Kr. 117. 8. Dart on Vendors, US. . 9. (;oy. Con. Ev. 118. 1. Con. SUt. U. C. c. 16, B. I. r'i .! ■ C ' 116 PRODUCTION AND CUSTODY Or DFEDS. An attested copy of the probate may, perhaps, be of as mnch real value as an office copy of the will, but as the probate is in itself only a secondary instrument, the pur- chaser \a reasonably entitled to something more than a copy of a copy. Where the title deeds cannot be delivered, even trus- tees are bound like other vendors to furnish attested copies. 2 2. Covenant for Production. When the sale is completed the purchaser is entitled to the original title deeds, or to a covenant to produce them, and to attested copies of the originals,^ this right does not however seem to extend to old deeds not neces- sary to make a title,* nor to documents used merely as negative evidence.^ The first and most important consideration on this covenant, is its currency with the land. To ensure this there must be a legal privity between the covenanting parties.^ Covenants for production are real covenants, and run with the land for the benefit of purchaserSj but not for the benefit of vendors ;'' in other words, pur- chasers from the covenantee may take advantage of them against the covenantor himself but the liability will not extend to the covenantor's assignees. ^ The covenant to produce is therefore commonly said to be lost by the holder aliening the lands in respect of which he was allowed the custody, of the deeds.® This hc^w- 2. Dixon on Title Deeds, 24!{ ; Gov. Con. Ev, 119. 3. Boughton v. Jewell. IS Ves. 176. 4. Dare v. Tucker, 6 Ves. 442. 6. Dart on Vendors, 93, 867, 442. 6. Gov Con. Ev. 125 ; Dart on Vendors, 368. 7. Barclay v. Raine, 1 S. & S. 449. 8. Piatt on Covenants, 227. 9. Gov. Con. Ev. 129. PROliUCTlON AND CUSTODY OF DEEDS. 117 ever is scarcely accurate. It is Irue he may with the estate deliver over the deeds to a purchaser, but ihis does not exonerate him or his heirs from his covenant to produce the deeds. If he has neglected to take any legal obligation from the second purchaser to pro- duce the deeds when he shall be called upon to do so, and cannot prevail on him to produce them on any given occasion, then he, or his heirs, if bound, are liable to an action on the covenant to produce, and damages to the amount of the injury proved, will be given against them.i It has been said that a covenant to produce all deeds, papers and writings generally, without a schedule, is a mere nullity,^ still if it can be shewn ihal the covenantor is in possession of a document or set of documents re- lating to the lands, he would without doubt be held bound by his covenant.^ On a sale by fiduciary vendors it is usual to insert a proviso in the covenant for determining the vendor's liability upon his selling the residue of the property, and procuring a substituted covenant to be entered into by the person who will upon such a sale become the holder of the deeds.* The proviso when inserted should pro- vide for the actual delivery of the substituted deed of covenant to the purchaser or his representative^. A purchaser is not bound, however,^ and perhaps can- not be advised, to assent to the introduction of such a proviso, except upon sales by the assignees of a bank- rupt. ^ If the purchaser has omitted to take a covenant for the 1. Gov Con Ev 129, 130. 2. Shaw V.Shaw. 12 Price 163, 3 Gov Gon. Ev. 132. 4. Dart on Vendors, 358 ; Dixon on Title Iieeds, 243. 6. Sug. V.&.V 452. 6. Dart on Vendors, 067. , i f I ! 1 1 1 i ;( ., ■ |( ^^'-1 ;:,.|: :0ttV, 118 PRODUCTlOir AND C08TODY OF UEKDS. production of deeds, he cannot, under the covenant for further assurance, require the vendor to enter into such a covenant.' A purchaser will not in any. case be compelled to complete his purchase where the deeds are outstanding, unless he has a covehant for their production.^ In Barclay v. Ralne,® Vice Chancellor Sir John Leach, held, that " a Court of Equity never compels a pur- chaser to take without the title deeds, unless he has a covenant to produce them, and a right in equity to com- pel the production of the deed?, even if it existed, would be no answer." 3. Custody of Deeds. As a general rule every owner of property for the time being is entitled to the possession or custody of the title deeds relating to the property, whether his estate be in fee simple or in fee tail, or freehold not of inheritance, or an estate on condition as mortgagee, or other defeasible estate, for a mortgagee is considered as an owner to the extent of his mortgage. ^ Where a tenant for life, or a person entitled to part of the land, has possession of the title deeds, the Court will not, at any rate without some good reason, take them out of his hands. ^ If an estate affected by one set of title deeds be sold in lots, and no condition is inserted as to the custody of the deeds, the vendor is entitled, if any lot, however small, remains unsold, to the custody of the deeds ; but if there 7. 1 Byth. 102 ; Piatt on Covenants, 231 ; Dart on Vendors. 311. 8. Dixon on Title Deeds, 243. 9. 1. 8.A.S. 449. 1. Lee on Abs. H6& ; Gov. Coa Ev. 135. i. Foster v. Crabb, 12 C. B. 130. PRODUCTION AND CUSTODY OF DBXDS. 119 is no stipulation to the contrary, he must furnish the purchasers with attested copies.^ On a sale in lots it is generally requisite to provide for the ultimate custody of the deeds, which, in the absence of a stipulation, go to the purchaser of the lot largest in value ; or rather it is conceived, to the purchaser whose aggregate purchase money amounts to the largest in val- ue.* If the vendor on a former occasion has sold any por- tion of the land and retained the deeds, and now sells the residue, so that he has no pretence for retaining any evi- dence of the title himself, the present purchaser standing in the place of the vendor, has, it is conceived, a better right to the custody of the deeds than the former pur- c>iaser, though his purchase concern the largest portion o. the lands embraced in the deeds. ^ It must be remembered that it is only when title deeds come from the proper custody, that their due execution according to their purport can be assumed without proof. ^ S. Con. Con. Ev. 137. 4. Dart on Vendors, 94. 5. Cov. Con. Ev. 138. «. Cov. Con. £v. 13, 19, 41. I' 1; El CHAPTER VI. ». !', SECONDARY EVIDENCE AND PRESUMPTIONS. 1. Secondary Evidence. : To the admission of secondary evidence, proof of thfs loss or destruction of the original document is a neces- s&ry preliminary. Proof of the destruction more readily lets in the secondary evidence of a copy, than proof of the loss, which must ever be incomplete and exception- able. '^ Before the secondary evidence can be received, the same evidence of their loss and contents must be given as on a hearing in equity, or on a trial at law. The degree of diligence to be u^a* in seeking for an original document, before a par y .an give secondary evidence of its contents, must depend, in a great mea- sure, upon the circumstanct ^ of each particular case. If a paper be of considerable .alue, or if there be reason to suspect that the party not producing it, has a strong interest which would induce him to withold it, a very strict examination would properly be required ; but if a paper be useless, and the party could not have any inte- rest in keeping it back, a much less strict search would be necessary to let in secondary evidence of its contents.* The point to guard against in this respect is a pledge or deposit of the original document.® Parties searching for a missing deed should remember that the person en- titled to the first immediate estate of freehold is entitled to retain the title deeds as against those entitled in remainder or reversion ; ^ and that the deeds are pre- 7. Gov. Con. Ev. 812. 8. Gov Gon. Ev. 312. 9. Gov. Gon. Ev. 813. 1. Dixon on Title Deeds, 36 ; Webb v. Lymington, 1 Eden, 8. SECONDARY ETIDENCIT AND PRESUMPTIONS. 121 sumed to follow the title and to go into the custody of those entitled.2 When the lands descend to real representatives, they, and not the personal representatives, are entitled to tho deeds, though for greater certainty a search with the lat- ter would be advisable, especially in the case of a mis- sing mortgage. The presumption that the deeds follow the title may be destroyed, as for instance, by the fact that they covered other lands retained by the vendor,'* or that some prior owner on sale of a portion gave a covenant to produce them. Where the document, if in existence, should bo in the possession of the party who desires to give "ccoiulury evidence of its contents, the proper course is ti).,t he i^hould search with a witness, and that the search tliould be so conducted, and in such places, as to alTurd <>. rea- sonable ground for concluding that it was made bona fide, both as r-^gardd the witness and the parly, by giving and using all possible facilities to make ii efl'ectual.'^ Where suiHcient evidence has been given of destruc- tion of the original document, or of search and lo.s.« to lot in secondary evidence, memorials afl'ord, in cases of conveyance, a frequent means of furnishing such evi- dence, and are admissible or not according to circum- stances. A memorial signed by a grantor, who was not shown to have had more than mere constructive possession by force of the conveyance to him, has been held \o be evi- dence not merely against the grantor, and all claiming under or in priority with him, but also against third per- 2. Leith'g Heal Prop Stat 427. 8. Yeo V. Field, 2 T. R. 708. 4. Uratt V. Lee, 7 C. P. U. C. 280. 1£3 SKCONDART EVIDENCE AND PRESUMPTIONS. I cons not a 'Spearing to have any title whatever except a bare possession of insufficient Juration to confer a title, as being a statement and act by the party in possession against his own interest as reputed owner of the land.^ Though the weight of authority is in favour of taking a memorial executed by a grantor as good secondary evidence even against strangers, without corroborative evidence, it is not clear thai this W(mld be so if at the time of the conveyance sought to be proved some one were in possession adversely to the grantor. Many of the principles whereon a memorial signed by a grantor is admissible as evidence of a conveyance by him, do not apply where it is executed by a grantee. In the latter case it is a statement, not against, but in support of interest, and by a person not then in posses- sion. But such a memorial, if coupled with other facts confirmatory of the instrument set out in it, is admis- sible na parcel of the evidence towards proof. A memorial executed by a grantee through whom a person claims, coupled with »possessi(Hi taken under the instrument to which' it relates, and enjoyed for a length of time in a mode such as to preclude the possibility of the instrument being other than as set forth by the me- morial, is good evidence even against strangers, espe- cially if accompanied by other corroborati.e facts, but the mere memorial would be evidence only against those claiming under or in privity with the grantee.® There seems, however, some danger in allowing mere length of possession and dealing with the property to be sufficient corroborative evidence on which to admit a memorial executed by a grantee as evidence of a con- veyance in foe simple absolute. Until the /ecent Regis- try Act it was not necessary to set out in a memorial the 6. Russell V. Fraser, 16 C. P. U. C. 876 ; but see Ilayboll v. Shepherd, 26 Q. B. U, C. «. Ooijh V. yoBUde, 10 C. P. U. C- 1«6 ; Fields v. Livingstone, 17 C. P. V. 0. 16. T SECOIVOARY ETIDENCE AND PRESUMPTIONS. 123 r r le estate or inlerest conveyed, and in the case of a convey- ance for life, a fraudulent grantee might execute a, memorial referring to an instrument granting a fee sim- ple absolute. He might then after destroying the deed, convey in fee, and the property might pass through various hands during his lifetime, and there might thus be possession and dealing with the property for fifty years, consistent with the right of possession and with the conveyance in fee as set out in the memorial. The persons entitled in reversion are not supposed to enquire until their right accrues, and when it does they have to ccDtend against evidence offered of the fraudu- lent memorial and the possession and dealing said to be consistent with it. The cases when eyjmined, hardly go the length of holding that mere length of poseession though for a con- siderable time under an alleged grant in fee coupled with a memorial executed by the grantee, is sufficient evi- dence. There are either other facts which lead to the belief of, or are confirmatory of the instrument ; or, if mere length of possession alone has been considered sufficient, it has been in cases other than on a question of whether the conveyance was in foe simple absolute to the grantee, and where the possession had was quite inconsistent with the instrument being otherwise than as set out in the memorial. As between vendor and purchaser, and on proceed- ings under the Act for Quieting Titles, stricter ev'. Jence is required than in ejectmerl ; it is necessary where a party relies on memorials as proof of missing deeds, to show that the deeds contained no trust, limitation, con- dition, exception or qualification not mentioned in the memorial. The execution of a memorial which is re- ceivable ill evidence need aot be proved when more than thirty years old.' * 7. Dc9 Maclcm v. TurnbulJ fi Q. B. U. C. 119. ■ fflik:- m 4 i\ I I 4 *^T'^^ :ii hi l! 124 SECONDARY EVIDENCE AND PRESUMPTIONS. Where a foundation is laid by proper search or other- wise for the admission of the contents of a memorial as evidence, and when requisite, sufficient corroborative circumstances or privily shown, a memorial, though not thirty years old, produced from the Regi:^t;y Officf need not be proved ; and a copy certified by the Registrar as such is also admissible without proof of the execution of the original, or of the instrument to which the original relates.^ If a petitioner, under the Act for Quieting Titles, in- tends to use cjTlified copies of memorials as evidence, he must also procure and produce certified copies of the affidavits of execution. With respect to copies generally, it is to be observed that a copy^f a copy is not evidence, for the Courts re- quire the best evidence the nature of the thing admits, and the further off anything lies from the first original truth, the weaker must be the evidence ; besides there must be a chasm in the proof; for it cannot appear that the first was a Irae copy.^ 2. Voluntary A fi davits. Voluntary affidavits are frequently resorted to, and required by conveyancers under a choice of difficulties, in support of facts and averments, when more direct proof cannot be obtained. ^ These documents, though possessing no legal validity, are ofien all the evidence that can be adduced ; and as it were by general consent the profession adopt them as evidence upon titles. ^ As legal evidence, such affidavits are clearly inadmis- 8. Marvin v. Hales, 6 C. P. U. C 211 ; Lynch v. O'Hara, C. P. V. C 267 ; Doe d. f rlnce v. Glrty, 9 Q. B. U. C. 41. 9. Gov. (on. Kv. 313. 1. Gov. Con Ev. 319. 2, Lee on Abs. 216 ; Hubbaclc on Sue. 66. SECONDARY EVIDENCE AND PRESUMPTIONS. 125 sible ; they are purely voluntary, and not being made in Court in any cause, they will n t sustain an action for perjury ; then they are made expressly to support some point, and are, therefore, on the face of them, not of that pure and disinterested character which is expected from unexceptionab'e evidence ; and they frequently contain nothing more than hearsay evidence ; yet the convey- ancer admits this testimony as corroborative evidence of general reputation and concurrent possession. It should always appear on the face of the affidavit that the deponent is likely to be acquainted with the facts, and reasonable grounds for his belief should be stated.3 3. Recitals. Recitals or statements contained in Acts of Parliament srd in deeds, decrees and other instruments, furnish ■ ^ important secondary evidence. ." r cital is rather an interested witness, lor it is sel- do:. i" ever made with the knowledge and concurrence of paities having an adverse title ; it is a tale told by the party whose interest it is to support the deed, and, there- fore, is not of that unprejudiced character which other evidence preserved without reference lo any particular transaction is impressed with.* The general rule acted upon by conveyancers has been, that recitals and slateraents contained in deeds thirty years old or upwards may be considered as good secondary evidence, and where the facts recited are not very important, a purchaser may rest satisfied with such recitals without further evidence, even if containea in deeds of more recent date.^ Among the recitals dtemed of minor importance, may III 8. Gov Con. Ev, 819. 4. Cov, Con. Ev. 298 ; Lee on Abs. 364. 6. Lee on Aba. 300 ; Cov. Con. Ev. 293. 126 dECONDARY EVIDENCE AND PRESUMPTIONS. ,.■£:: ,^ ■•m> ■' ' M fail t : \ .-l^^- be mentioned such as relate to facts corroborated in part by other evidence, recitals of deaths, burial?, marriages, births or baptisms ; the number of children in a family, the failure of issue, or as to one person having survived another, or that one was the executor or administrator of another, as to the occupancy, identity or boundary of lands.® Where the facts are very important, a purchaser should not rely on the recitals even of an old deed ; especially if better proof aliunde can be obtained. Thus it has been decided, that it is not sufficient to prove an im|K>r- tant descent in a pedigree, for the vendor to set forth deeds which recite the pedigree, although the deeds are upwards of thirty years old.^ Recitals as to the contents of deeds are more to be de- pended upon, than recitals a^to pedigrees. Parties may themselves, without any fraudulent intention, mistake a pedigree, the latter therefore require to be more narrowly searched into.^ A deed can seldom be incorrectly rC" cited, unless through fraud or otherwise intentionally, much, therefore, depends on the nature of the recital, as well as its antiquity.^ The value of the statements and recitals respecting pedigrees in old deeds, depends entirely on the circum- stances whether possession has accompanied the deed containing the recital. If the deed itself be not sano* tioned by the acquiescence of parties, privies and stran. gers, the recitals in it are not entitled to much weight.* Neverlhtless if there be no apparent motive for misre- presentation, and the recital is borne out by forty years undisturbed possession, the conveyancers usually give credence to the statement.* 9. Lae on Abs. 800, 861 ; Gov. Con. Ev. 2M. 7. Slaney v. Wftde, 1 U. ft Cr. S58 ; Fort v. Gark, 1 Run. 901 ; Anon, 12 Mod. 884. 8. Lee on Aba. 361 ; Cov. Con. Ev. 800. 0. Ibid. 1. Coy. Con. Ev. 800. 1 Ibid, 200, 801. I HI' liir " SECONDARY ETIDENCE AND PRESUMPTIONS. 127 )art fes, (ved itor of Recitals often have the effect of controlling the opera- tion of a deed, as more clearly expressing the intention of the parties . But recitals cannot be allowed to restrain the operation of words in a deed where those words are of plain as well as known import. Recitals in deeds cannot alone be taken as evidence against strangers or others not parties to the deed con- taining such recitals. If it was otherwise, nothing would be easier than to insert recitals as the foundation of a good prior title ; thus a man might in a post-nuptial r~arriage settlement insert a recital of ante-nuptial arti- cles which never existed, end so defraud his creditors contrary to the 13 £liz. c. 5. Recitals are always taken as admissions of those who are parties to the deed and interested in the property. Thus,* where a recital occurred in a deed of settlement that the owner of the property had given a bond to an- other party, which bond was not produced as the execu- tion of it could not be proved, the recital was held to be evidence of the bond having been executed,* But although a recital may be evidence as against parties executing the deed containing the recital of the prior instrument, yet there ought to be some further proof to establish entirely the execution and validity of the recited deed ;^ a bare recital of a deed, it has been said, is not evidence ; but where there are other facts, (such as entries in a solicitor's books of charges for pro- curing the execution of the deed), which corroborate the recitals,' or where there is other evidence that the in- strument recited existed, then the recital may be taken not only as evidence of the existence, but (as against the t. 1 Swanst. lis. 4. Annandmle v. Hurls, 8 P. Wins, 434> 9. Ford V. Ld. Orejr, 6 Mod. 46. «.- Mcipwith T. Shirlejr, 11 Ves. 64. \28 SECONBART EVIDENCE AND PRESUMPTIONS. parties to the deed containing the recital) as evidence of the execution of the recited instrument.'' It appears, therefore, that although recitals may be good secondary evidence of deeds which are shown to have existed, but which have been lost or destroyed, yet the rule cannot be extended to those cases in which nothing is known as to the deeds to which the recitals relate.^ Recitals in a deed prepared by direction of a Court of Equity and settled by a Judge or a Master, are more to be relied on than other deeds, in consequence of the strict- ness with which facts and statements are required to be verified in the Master's Office. ^ Notwithstanding the fact, that recitals afford such evi- cence of prior deeds, yet in regard to the consequences of that evidence, or the notice given by them to purcha- sers, it is considered that such notice does not entitle a purchaser to demand an abstract of the deeds themselves, although it may entitle him to require the inspection of such recited deeds, if in the custody or power of the ven- dor, when they bear strongly upon the title. ^ 4. Presumptions. In the absence of all direct evidence, presumption may, after a great lapse of time, aided by other corroborative facts, such as uninterrupted enjoyment for a length of time, and acquiescence, or apparent acquiescence, of those whose claims are adverse, be relied on, particu- larly where the importance of the fact is inconsiderable. ^ Thus possession is prima facie evidence of property, but the landlord may prove that the occupier is his ten- 7. 6 B. & C. 601. 8. Lee on Abs. 303. 0. Ibid. 1. Lee on Abs. 364. , S. Lee on Ab8. 464, ii» I SECONDARY EVIDENCE AND PRESUMPTIONS. 129 ant by showing a payment of rent or other acknowledg- ment.* In the case of births and marriages many facts may be adduced in support of the presumption of one from cir- cumstances in connection with the other ; for instance, the birth or baptism of a child being proved, gives much weight to the presumption of a marriage between the parties whose child it is stated to be. Proof of a mar- riage prior to the time of the birth of a child affords ground for presuming that such child is the issue of the parties so married, if the mother be known ; and where a birth is proved a short time only after the marriage, the possibility that it is the eldest child of that marriage amounts almost to certainty.* In regard to marriages there are many grounds for raising a presumption of marriage in the absence of direct evidence of the fact. The parties having always lived together as man and wife, and having in common reputation been received by their friends, and passed as such ; children being described as the children of A. and B. his wiie ; their so styling themselves in wills ; and other matters less important than these, if ancient in date, have been allowed to raise the presumption of mar- riage in common cases.* It is found by common experience to be a necessary presumption that a person of the same name and con- veying the same interest as that limited to a person pre- viously mentioned, is the same person. Unless there is a great interval between any two deeds, evidence of identity is seldom called for ; if such a chasm exist it may be proper to require evidence of the occupation in the interval.^ 3. Gov. Con Ev 320. 4. Lee on Abs. 464. 6. Lee on Abs. 465 ; Baker v. Wiloon, 8 Qrut, 870. 0. Cot. Con. Sv. 321. 9 ISO SECONDARY ETIDENCE AND PRESUMPTIONS. ;'■ V i The law never makes a presumption that acts are wrongly done, or that fraud has been committed, unless there is good ground for believing such to be the fact ; presumptions, if made where nothing is known, are al- ways that things aie rightly done, or in favour of order and regularity.'^ In the absence of all proof or knowledge of facts there can be no presumption except what the law itself points out. In some cases an inference may be made from nothing being known to the contrary for a series of years. In any case of alleged quiet possession or of no claims made, there can be no presumption where there is no knowledge, except such as car be drawn from acquies- cense, or apparent acquiescence, in the title of the party in possession ; thus where no adverse claim has been heard of for a length of lime, quiet possession may be inferred or presumed.* It is the practice of Courts of Law, where a person has not been heard of for a number of years, to presume his death after seven years, but a seven years' absence without tidings is not sufficient to raise this presump- tion with conveyancers.® Every case must depend on its own particular circumstances, and no certain period can be fixed which will raise the presumption. It has been admitted by Courts of Equity after twenty years, in one case after fourteen years, but in a recent case after absence and silence for nineteen years, the Court refused to presume death where the circumstances rendered it improbable that the party, if alive, would have communicated ^ith his friends.^ Scarcely any length of time will be sufficient to compel an unwiliwig 7. Lee on Abs. 465 ; Cov. Con. Ev. 319. 8. Lee on Abs. 466. 9. Dart on Vendors, 228. 1. Bowden v. Henderson. 8 Sm. fc 0. 360. SECONDARY EYIDBNCK AND PRESUMPTIOMS. 131 purchaser to take a title depending on such a presump- tion of death, unless made with reference to the age of the party said to be dead ; and if the party whose death is asserted was, when last heard of, very young, the period must be that beyond which human life does not commonly extend. ^ If the presumption to be made is, death without issue, it is doubtful if a court would as against a purchaser ever make the presumption within the period of sixty years. ^ S. Lee on Abs. 469. & Ibid, 467. CHAPTER VII, n** . QUIETING TITLES. In 1865 an Act was passed* " For quieting titles to real estate in Upper Canada," which has proved a great boon to land owners in this Province. The objects for which the act was passed are stated in the preamble to be, "To give certainty to the title to real estate in Upper Canada, and to facilitate the proof thereof ; and also to render the dealing with land more simple and economical." As the law stood before the passing of this act, an owner of land might have an indisputable title, every link in the chain of which he could easily prove, but he had no certainty that when he might, years after, be called upon to prove his title he could do so. Title deeds might, in the meantime, be lost, or accidentally destroyed, witnesses might die, or important facts might have escaped from their memories. Even if his title was in any way attacked, he had in most cases only an opportunity of shewing his legal title. In an action at law, questions of the equitable title, or of equitable interests are rarely touched, and whatever may be the result of the action, it is binding only on the parties to it. If repeated actions are brought, the same steps have to be gone through, and the same evidence adduced, in each action. Besides, many of the defects in a title are such that if known of in time, they can easily be remedied, but are incurable after the lapse of some years. The original 4.S9Ylo.ctS. qUIKTINO TITLES. 133 parties to the transaction may be dead, and ihcir heirs, minors or unknown, so that confirmaiion deeds cannot be got. Or those who are in a position to take advan- tage of the defecr, may be tempted to do so by a rise in the value of the property. The intention of this act is to remedy these evils as far as possible by permitting any owner of land to have his title submitted to judicial investigation, and adjudi- cated upon, even though no hostile claim is being made. When the ownor has established his title after due enquiry, and every precaution on the part of the (!ourl against fraud, he is entitled to a certificate, which is conclusive against the whole world, that at its date the person named in it was the owner of the property, and w^hich is intended as a new starting point for his title. By this means, in the case of every person who has the wisdom to take advantage of the act, the dealing with his property will be a matter of great simplicity. Any owner of an estate in fee simple^ or any trustee for the sale of the fee simple, whether he has the legal estate or not, or whether his title is subject to any charges or incumbrances or not, is entitled to have his title judicially investigated and its validity ascertained and declared. It is always, however, desirable when the petition is presented by a mortgagor that the con- currence of the mortgagee should be obtained. It^ is in the discretion of the Judge before whom pro- ceedings are taken, to permit any other person who has any estate or interest, legal or equitable, in land, to apply for the investigation of his title and a declaration of its validity. This discretion may be exercised at any fuil I 6. 29 Vic. c. 26, 8. 1. 6. Sec. 2. mKummm 134 quimiro titles. r»" 4 :'^f^ ir'^' ^0i I 111 i: ! stage of the proceedings, and the decision of the Judge is subject to an appeal liice any other decision; but the order of Court "^ requires the C.'erk of Records and Writs, where a petition is filed under the second section of the act, to attend a Judge with the petition for directions, before it is referred for investigation. An application under the act^ is made to the Court of Chaficery, by filing a short petition, a form of which is givf a in a schedule to the act. before filing the petition the solicitor should carefully and thoroughly investigate the title, and the evidence that can be adduced in suppoit of it. As the registration of a petition not followed by a certificate will form a cloud on the title, he should not file one, if on inves- tigating the matter he discovers any in»urmountable defect, or that the necessary evidence on any material point is unattainable. Petitions^ may be referred by the Judge to the Master, or a Deputy Master, or any other officer of the Court, or to any counsel named by the Judge, and in such case the referee proceeds as the Judge himself would if no reference had been made, and has the same powers. The Court has^ appointed two Referees in the City of Toronto, to whom petitions may be referred, and has also named certain of the Local Masters as Referees. When a petition ia filed, the Clerk of Records and Writs,2 delivers to the party filing it a certificate undtr the seal of the Court and signed by the Registrar^ for registration in the proper county, and delivers the peti- 7. Con. Ord. 493. 8. Sec. 3. 0. Sec. 26. 1. Con. Ord. 494. 2. Con. Ord. 499. 8 29 Vic. c 26, s. 4. } qUIETINO TITLK8. 135 Ige Ithe [its, the of is t lion to the proper Referee. To enable him to do this the person filing the petition endorses on it the name of the Referee before whom he wishes the investigation to be had/ and where no Referee's name is endorsed the petition is sent to one of the Toronto Referees in rota- tion.* To facilitate proceedings in the case of petitions referred to Local Masters, the Toronto keferees liave also been appointed Inspectors with the powers conferred by the 25lh & 26lh sections of the act, and the Local Master, after investigating the title and being satisfied that the petitioner is entitled to a certificate, forwards the deeds, evidence and other papers to the Inspec- tor whose name is endorsed on the petition, who examines the same, and should he find any defect, cor- responds with the Local Master, and has the defect remedied before a Judge is attended with the petition and papers for approval ® The petition, where the refererence is to a Local Mas. ter, must be entered with the Inspector who.-e name is endorsed before it is filed, and the Inspector writes on it the day on which it is so entered, and then delivers it to the solicitor to be filed, or if it is already stamped sends it to the Clerk of Records and Writs. ^ Any number of lots or parcels belonging to the same person, and dep(?ndant on one and the same chain of title, may be included in one petition, but two or more properties dependant on separate and distinct titles can- not be so included.^ A l(X)se and indefinite description of the property as 4. Con. Ord. 495. 6. Con. Ord. 496. 6. Con. Om. 607. V. Con. Ord. 49T. a. Con. Cord. 402. 136 QUIETING TITLES. t 4 " part of Lot *^ not saying what part, should be avoided. If the land has been for some time in the oc- cupation of any person, it may be proper to state " now and for some time occupied by ." So if it adjoins any well known property, or properly occupied by some public company, it may be advisable to describe it as so adjoining. In the body of the petition the description should be as certain as in a conveyance, to identify the land claim- ed with the Registrar's Certificate and in order that the certificate of title may follow it. For the same reasons the petition should correctly describe the estate or inte- rest in the lands claimed by the petitioner. The fifth section of the act sjjecifies the particulars by which the application is tc be supported. These should not be laid before the Referee piecemeal, but the soli- citor shoukl, before producing any of them, obtain all the necessary aff Javits and certificates proving posses- sion of the land to have goae with Ibe ownership, the heirship of parties claiming by descenl, the death of parties entitled *o dower, or tenancy by the curtesy, that the land is not chargeable with any crown debt^, or with certain debts only, that all taxes on the land have been paid up to the first day of January next preceding the filing of the petition, that there are no writs of exe- cution in the SheriflPs hands against any person inte- rested in the land, and that the land has not been sold for laxes within eighteen months preceding the filing of the petition, or under execution within six months preced- ing. The affidavit of the petitioner should cover aU these points, although other evidence is also necessary for the purpose of proving the facts. Where the County Registrar is unable from the de- scription of the property to certify that the memorials mentioned are all that affect the land, a Surveyor or jSli-^ )e IS »e 30 le IS QUIETING TITLES. 137 Other competent person should examine the property, and after examining the registry booits, make an affi- davit that the memorials produced are all those that affect the land. Where any of the deeds are lost or cannot be pro- duced, the same evidence of their loss and contents must be given as on a trial at law, before secondars evidence can be received. Proof of search for the missing deeds must be given, and an affidavit of search by the petition- er himself is insufficient.^ VVhe/e the title is derived through a sale for taxes, the affidavit must show that all the requirements of the statute have been strictly complied wiih. Where the petitioner's title was acquired within two years before the filing of the petition, the Sheriff's certificate .should be obtained as to executions against the prior owner, as any such execuliotis, if duly revived would be bind- ing on the lands. 1 By the evidences of title, spoken of in the first sub- section of the fifth section, is meant specially, written documents other than title deeds, not proofs of fac;s, which are provided for by the fifth suh-sectlon. The second subsection shews that the particulars to support the application cannot be delivered to the Re- feree until the certificate of filing has been registered, as before that certificate is registered a certified copy of all memorials "up to the time of the registering of a certificate cannot be procured.? Where a petitioner in- tends to use certified copies of memorials as evidence, he must also produce certified copies of the affidavits of execution. 9 Re Chamberlain, 2 Chan. Cham. R. 362. 1. Re l^yons, 2 Chan. Cham. R. 367. 2. Re Hill, 2 Chan. Cham. B. 318. 138 qUIETING TITLKS. if-t iia ill I" ii mi t > ii The concise statement of facts spoken of in the fourth sub-section, is intended to embrace ail facts necessary to make out the title, and which do not appear on the doc- uments produced, — as title by length of possession, mar- riages, deaths, descents, &c., dates being given in all cases where possible. The proof of facts to which sub-section five refers, such as ! ligih of possession, marriages, deaths, loss of deeds, searches for them and their contents, should ac- company the deeds when delivered to the Referee, unless evidence viva voce has to be given. The petition must be supported by the affidavit or depo- sition' of the person whose title is to be investigated, and a certificate from his counsel or solicitor ;* but the Judge may in his discretion dispense with the affidavit, or permit it being made by some other person, or he may admit an affidavit as to part by the one, and as to part by another. The affidavit or deposition of the owner must state,' that to the best of his knowledge and belief he is the owner of the estate or interest claimed by the petition, subject only to the charges or incumbrances mentioned in it or in the schedule thereto, or that there is no charge or in- cumbrance affecting the land ; that the deeds or evi- dence of title produced, are all that are in his possession or power ; and that he is not aware of the existence of any claim adverse to or inconsisslent with his own, to any part of the land or to any interest therein ; or if he is aware of any adverse claim he must set it forth ; and depose that he is not aware of any claim except what he sets forth. The affidavit must also state whether any one is in possession, and under what claim, right or title, and that to the best of the deponent's knowledge f^m^ 3. Sec. 6. 4 Sec 7. 6. 8ec. 6. I? t: qUIETINO TITLES. 139 rth to )C- ir- lU irs, of IC- and belief the affidavit or deposition, and the other papers produced, fully and fairly disclose all facts material to the title he claims, and all contracts and dealings which affect the same or any part thereof, or give any right as against the petitioner. He must also state whether he is married or not. The certificate of ihe counsel or solicitor to accom- pany the petition, should state, ^ that he has investigated the title and believes the applicant to be the owner of ihe estate claimed by the petition in the land in ques- tion, subject only to the charges and incumbrances, (if any,") set out in the petition or schedule thereto ; or that he so believes subject to any condition, qualification or exception set out in thv^ certificate. It must further state that he has conferred with the deponent on the matters set forth in the affidavit or deposition already referred to, and that he believes the affidavit or deposi- tion to be true. The various proofs required to support the petition, may be in the form of affidavits or certificates, or given viva voce]'' or in any other manner or form that the Judge deems satisfactory under the circumstances ; and the Judge may act^ upon any evidence now received by any of the Courts on a question of title ; and any evidence which the practice of English Conveyancers authorizes to be received on the investigation of a title out of Court ; or any other evidence, whether the same be or be not receivable or sufficient in point of strict law, or accordmg to the practice of English Conveyancers, pro- vided it satisfies the Judge of the truth of the facts in- tended to be made out thereby. As a general rule the evidence should include not 6. Soc 8. 7. Sec. 10. 8. S«c. 9. I '^ !ii 140 QUIETING TITLES. ^4 lill only what a purchaser's solicitor would satisfy himself of by search and enquiry according lo the rules laid down by Conveyancers, but what is necessary for a vendor to produce to a purchaser on the strictest inves- tigation of a title ; and every material faut which is capable of being proved by independent evidence, must be so proved ^ Belter evidence is necessary than would prevail in an action of ejectment ; the petitioner is therefore often required to furnish evidence which would be elicited by adverse proceedings, to prove or disprove facts, which were he a party litigant, it would be the business of his opponent to negative or establish. Where the Judge is not satisfied with the evidence of title produced in the first instance, he may give a reasonable opportunity of producing further evidence, or of removing defects in the evidence produced. ^ In every case, before a certificate or conveyance is grunted, a notice either of the application being made, or of the Judge's order or decision thereon, must be published in the Canada Gazette, and if the Judge thinks proper in any other newspaper or newspapers for such period or periods as he thinks expedient ; and the certi- ficate or conveyance is not lo be signed or executed until after the expiration of four weeks from the first publication of the notice. ^ The notice is prepared by the Referee and in addition to the publication in the Gazette and newspapers, a copy is to be put up (for not less than four weeks), on the door of the Court House of the County in which the land lies, and in some conspicuous place in the Post Office which is situate nearest the property, unless the 0. Re Chamberlain, 2 Oban. Cbam. B. 852. 1. Sec. 11. 2. Sec. 12. qUIETlNO TITLES. 141 Post Office is situated in a city.^ Proof of these notices having been posted up and continued for the period directed by the Referee must be |)roduced.* Where the Judge is satisfied respecting the title, and considers that the certificate can safely be granted with- out any further notice of the application than those already referred to, he raay grant the certificate accord- ingly ;^ but if there appears to exist any claim adverse to or inconsistent with that of the petitioner to or in respect of any part of the land, such notice as the Judge deems necessary is to be mailed or served on the adverse claimant, his solicitor, attorney or agent ;^ and in all cases the Judge may, before granting a certificate, require any further publication, oi any other notice to be mailed or served, that he deems necessary.'^ The provisions of the act as to the effect of a certificate of title are so stringent that the Court exercises very great particularity in seeing that all persons entitled to notice have been duly and regularly served, and that strict proof of such service be given.® Where there is any doubt whether some person other than the petitioner may not be interested in the property^ notice should be given ; and the same should be done where the title is not a clear paper title, proved by production of the ori- ginal deeds. If the petitioner's title rests on the Statute of Limita- tions, notice should be given to the person whose right is said to be barred, as in various ways the effect of the statute may be defeated.^ 8. Con Ord. 604. 4 Renin, 2 Chan Cham. R. 848. 6 Sec. 13. 6. Sec. 14. 7. Sec. 15. 8. Re Palmer, 2 Chan. Cham. R. 861. 9. Re (. hamberlain, 2 Chan, Cham. R. 862. i: f I 143 qUIETING TITLES. i :> Nil So where secondary evidence is given by production of a memorial and affidavit of execution, if the memo- rial is not in full and not signed by the grantor, notice should be given to the grantor. In the case of a title derived under a sale for taxes, the person who but for the sale would be owner, should have notice of the proceedings, and as a general rule where the registry shews a conveyance from a person through whom the petitioner does not claim, and who on registry has no apparent title, notice should be given to the grantee. A discretion should, however, be exer- cised in giving notice, to avoid, on the one hand, doing injustice to some person probably interested, and on the other hand, putting the petitioner to unnecessary ey. pense. Proof is indispensable either that possession has always accompanied the title under which the petitioner claims, or that some sufficient reason exists for not adducing such proof. ^ Any person who has an adverse claim, or a claim not recognized in the petition, maj at any time before the certificate is granted file and serve on the claimant, his solicitor or agent, a short statement of his claim,^ which must be verified by affidavit.* In the case of a contest, the Judge may decide the question on the evidence before him, or may refer the same, or any matter involved therein, to the full court, or to any mode of investigation usual in other cases, or which he deems expedient, and may defer granting a certificate, according as the circumstances of each case render just and expedient."* One certificate of title may be given comprising all 1. Re Wright, ?. Chan. Cham. B. 86S. S. Sec 19. 8. Sec. 20. 4. SecU. M,'l QUIETING TITLES. 143 ts the land mentioned in the petition, or separate certifi- cates as to the title of separate parts of the land.* Where an erroneous certificate was issued, but not registered, and no deed or incumbrance had since been made affecting the land, an application on petition for the issuing of a proper certificate was granted exparte.^ The certificate may be in the form prescribed in the schedule to the act, under the Seal of the Court, signed by one of the Judges, and by the Registrar, and with the schedule (if any), or a duplicate or counterpart, is to be registered in full both in the Court of Chancery and in the Registry Office of the County where the land lies, without any further proof. "^ The certificate when so sealed, signed and registered, is made by the act conclusive at law and in equity and the title therein mentioned is to be deemed absolute and indefeasible, from the day of the date of the certificate, as regards Her Majesty and all persons whatever, sub- ject only to any charges or incumbrances, exceptions or qualifications mentioned therein, or in the scLedule thereto, and is to be conclusive evidence that every application, notice, publication, proceedings, consent and act whatsoever, which ought to have been made, given and done previously to the granting of the certificate, has been made, given and done by the proper parties ;® and a copy of the certificate purporting to be signed and certified as such, by the Registrar in Chanceiy, or by the Registrar for the County in which the land lies, is to be admissible evidence of the certificate for all pur- poses without further evidence of the copy, and without accounting for non-production of the original.^ HI 6. Sec. 27. 6. Bradley v. McDonell, 2 Cban. Cliam. B. 271 7 Sec. 28. 8. Sec. SO. «• D6C« oX% 144 QUIETING TITLES. iM Every claim of title under the act, and every certifi- cate is to be presumed subject to the foiiowlDg excep- tions and qualifications, unless the petition for invesli- gatiun expressly alleges the contrary :^ " 1. The reservations (if any) contained in the original grant from the Crown ; 2. Any municipal charges, rates or assessments there- tofore imposed for local improvements, and not yet due or payable ; 3. Any title or lien which, by possession or improve- ment, or other means, the owner or any person inter- ested in any adjoining land has acquired to or in respect of the land mentioned in the certificate; 4. Any lease or agreement for a lease, for a period yet to run, if not exceeding three years, where there is actual occupation under the same." Where the petitioner desires to obtain a certificate declaring the title free from such particulars, or any of them, his petition is to state so, and the investigation is to proceed accordingly. ^ When land is sold under a .decree of the Court of Chancery, the Court may order the title to be investi- gated with a view to granting an indefeasible title, and where such an investigation is had, a conveyance to the purchaser in the form prescribed by the act, under the seal of the Court, and purporting to be made in pursu- ance of the act, is to have the same conclusive affect as a certificate. 3 And where a decree is made for specific performance of a contract for the sale of an estate, and it is part of the contract that the purchaser should have an indefeasible title, the Court may make the same investi- gation, and grant a similar conveyance.* 1. Sec. 17. 2. Sec. 18. 8. Sees. 32, 33. 4. Sec. 34. qUIKTIIfG TITLES. 145 iH- ep- sli- |nal ;re- iue I IS After a certificate is granted under the act, any person aggrieved thereby may, on petition, and after satisfac- torily accounting for the delay, have the title or claim re-investigated, on such terms as may seem just ;* but no proceeding on such a petition is to affect the title of any person who, in the meantime, and after the registra- tion of the certificate, has acquired by sale, mortgage or contract, for valuable consideration, any estate or interest in the. land specified in the certificate.® Proceedings under the act are not abated or suspended by any death or transmission or change of interest, but in any such event the Court or Judge may require no- tices to be given to persons becoming interested, or make any order for discontinuing, or suspending, or carrying pn thf! proceedings, or otherwise in relation thereto, as under the circumstances may be just ;'^ and no petition, order, afiidavit, certificate, registration or other proceed- ing under the act is to be invalid by reason of any infor- raalitv or technical irregularity therein, or of any mis- talce not affecting the substantial justice of the proceed- ing. » At any stage of the matter, the Judge may order secu- rity for costs to be given by the applicant for a certificate,. or by any person making an adverse claim ;^ and may order costs either as between party and party, or as between solicitor and client, to be paid by or to any person, party to any proceeding, and may give directions as to the fund out of which any costs are to be paid.i With the leave of the Judge a petition may be with- ii 6. Sac. 43. 7. Sec. 44. 8. Sec. 46. 9. Sec. 22 1. Sec. 2S. 10 i 146 qUIETINO TITLES. drawn at any time before final adjudication, on payment of all costs incurred in the investigation either bj the petitioner or by any adverse claimant. ^ In case any person who, if not under disability, might have made any application, given any consent, or done any act, or been party to any proceeding under the act, is a minor, an idiot or a lunatic, the guardian of the minor, or committee of the estate of the idiot or lunatic, may make such application, give such consent, do such act, and be party to such proceedings as such person might, if free from disability, have made, given, done or been party to, and is to represent such person for the purposes of the act : and if the minor has no guardian, or the idiot or lunatic no committee of his estate, the Court or Judge may appoint a person with like power to act for the minor, idiot or lunatic ; but a married woman is, for the purposes of the act, to be deemed a/ernc sole.^ Nothing in the act is to entitle any person to refuse to answer any question or interrogatory in any civil pro- ceeding in any Court of Law or Equity, but no answer to any such question or interrogatory shall be admissi- ble in evidence against any person in any civil pro- ceeding.* 2. Sec. 24. 8. Sec. 41. 4. Sec. 61< lent the APPENDIX. i 29th VIC. CAP. XXV.— AN ACT FOR QUIETING TITLES TO REAL ESTATE IN UPPER CANADA. WHEREAS it is expedient to give certainty to the title to real estate, in Upper Canada, and to facili- tate the proof thereof ; and also to render the dealing with land more simple and economical : Therefore, her Ma- jesty, by and with the advice and consent of the Legis- lative Council and Assembly of Canada, enacts as fol- lows : I. Any owner of an estate in lee simple in land in Up- per Canada, or any trustee for the sale of the fee simple, shall be entitled to have his title judicially investigated and the validity thereof ascertained and declared ; and he shall be so entitled "whether he has the legal estate or not, and whether his title is subject or not to any charges or incumbrances. I The principal objects sought to be attained by this Act, are the giving greater certainty to titles, and by facilitating the proof of them to render the dealing with land simple and less expensive. As the law stood before the passing of this Act, an owner of land might have an indisputable title, every link in the chain of which he could easily prove, but he had no certainty that when years after he might be called upon to prove his title, he could do so. Title deeds might in the meantime be lost, or accidentally destroyed, witnesses might die, or important facts might have escaped from their memories. Even if his title was in any way attacked, he had in most cases only an op- portunity of showing his legal title. In an action at law, questions of the equitable title or of equitable interests in the property are rarely touched, and whatever the result of the action may be, it is binding only upon the parties to the action. If repeated actions are brought, the same steps have to be gone through, and the same evi- dence adduced in each action. Besides, many of the defects in a title, are such that if known of in 11 148 APPENDIX. I It i< I., 'Hi' ' I time, they can easily be remedied, but are incurable after the lapse of Home years. The original parties to the transaction may be dead, and their heirs, minors or unltnown, so that confirmation deeds cannot be got. Or those who are in a position to tal^e advantage of the defect, may be tempted to do so, by a rise in the value of the property. This Act Is Intended to remedy these evils as far as possible, by permitting any oviner of land to have his title submitted to judicial investigation, and adju' Hated upon, even though no hostile claim is being made. When the owner has established his title, after due enquiry and every precaution on the part of the Court against error or fraud, he is to be entitled to a certificate, which is to be conclusive against every person, that at its date the person named in it was the owner of the property, and which is intended to be a new starting point for his title. By this means, in the case of every persoa who has the wisdom to take advantage of the Act, the dealing with his property will be a matter of great simplicity. Where a certificate of title has been obtained under this \ct. many of the questions arising on every title will be avoided. An intending purchaser need not enquire into the genuineness of the various deeds, or as to their due execution : all doubt as to the sufficiency of any will forming a linli in the title, or the capacity of the testator when he executed it, will be set at rest. Where married women have been the grantors, there will be no need for enquiry as to whether they were duly examined as required by law, and certificates of the fact in due form endorsed on the deeds. He knows that these and all simi- lar qi:estion8 have been submitted to a close and careful scrutiny, and satisfactorily established. All reasonable precautions are provided by the Act to prevent the possibility of injustice. Before a certificate of indefeasible title is granted, the Court is to make, either itself or by a competent officer acting under the supervision of a Judge, a thorough examination of all the deeds and evidences of title which are in the possession or power of the petitioner ; the Registry office must be carefully searched, and copies of all memorials relating to deeds, the originals of which cannot be found, must be produced. The petitioner must make an affidavit that he knows of no adverse claim, and his solicitor or coun- sel must certify that he has examined the title and conferred with the applicant, and that he believes the title to be a good one, and the affidavit true. Notice of the application is also to be given, not only to any one *who may appear to have an adverse claim, but to any one the Judge APPENDIX. 149 he of and Jtbe kect. by licial Im is and Ihc is tvery may think should have notice of tlie proceedings. Notice is also to be published in the Oazetie, itnd other newHpapers, so that if there is any claimant, whoso title dues not appear on Registry nor in the deeds, and who is unknown to the petitioner or his advisers, he may, if possible have notice of what is going on, and have aa opportunity of asserting his rights. Where a petitioner in proceeding under this Act, makes out his title satisfactorily^ he is entitled to a certificate unless the title can be successfully impeached at law or in equity ; and if a bill filed by the contestant impeaching the transaction, by whicii the claimant's title arose, could be successfully resisted by claimant on any ground, it will form no obstacle to a certificate being granted to the claimant. Laing v. Matthews, 14 Gr. 36. If the opposing claim is such that had a bill been filed by the party entitled to enforce it, the claimant would have had a good defence as a bona fide purchaser for value without notice, the claimant will be entitled to a certificate of title, Cochrane v. Johnston, 14 Gr. 177. II. Any other person who has any estate or interest, legal or equitable, in or out of land in Upper Canada, may also apply for the investigation of his title and a de- claration of the validity thereof ; but it shall be in the discretion of the Judge by or before whom the proceed- ings are taken, to grant or refuse the application for the investigation ; and such discretion may be invoked and exercised at any stage of the proceedings, and the deci- sion of the Judge in pxercising such discretion shall be subject to appeal like any other decision. III. The application shall be to the Court of Chancery or any Judge thereof, and may be by a short petition in the form given in Schedule A. The solicitor should carefully and thoroughly investigate the title and the evidence which can be adduced in support of it before filing the petition. If on such investigation he discovers an insurmountable defect, or that the evidence on any material point is unattainable, he should not file the petition, as the registration of a petition as required by the Act, without any certificate following it, will form a cloud upon the title. When the solicitor has examined the title and found it perfect, he should prepare the petition, following the form given by the Act, which should strictly be followed, and varied only in special cases. mm 150 APPENDIX. Ill;*' I" I.. 1*,.'^ ■ »>■' r y The filin"' of ft petition is not snch a proceeding as will save tli© rights of a part;- coutcstant, otherwise barred by the Statute of Lim- itations, Laing v. Avery, 14 Gr. 33. IV. A certificate by the Registrar of the said Court, of the petition being filed, shall be registered in the Regis- try Office of the County in which the land lies, and this certificate may be in the form given in Schedule B. V. The application shall be supported by the follow- ing particulars : 1. The title deeds (if any) and evidences of title relat- ing to the land that are in the possession or power of the applicant ; 2. A certified cC|:,y of the memorials of all other regis- tered instruments affecting die land, or of all sines the last judicial certificate, if any under this Act, was given (as the case may be), up to the time of the registering of a certificate of the petition as provided for by section four ; 3. The certificate of the Kegi^Jrar of the County in which the land lies, as to bills and proceedings in Chan- cery or in any County Court on its equity side, relating to the land, and of which a certificate has been registered in his office ; 4. A concise statement of such facts as are necessary to make out the title, and which do not appear in the produced documents ; but no abstract cf produced docu- monts shall be required, except on special grounds ; 5. Proofs of any facts which are r squired to be proved in order to make out the title, and which are not estab- lished by the other produced documents, unless the Judge shall dispense \yith such proofs until a future stage of the investigation ; I APPENDIX. 151 \» to e n g n I 6. An affidavit or deposition by the person whose title ie to be investigated and a certificate of one cf his Coun- sel or Solicitors, to the efiect hereinafter respectively mentioned, unless the Judge sees fit, for some special reason, to dispense with the same respectively ; 7. A Schedule of the particulars produced under the preceding six subsections. The solicitor should, before any proofs are laid before the Master or other Rcteree, obtain all the necessary affidavits proving possession of the land to have gone with the owuersliip, the heirship of parties claiming by descent, the death of parties entitled to dower, or ten- ancy by the curtesy, that the land is not chargeable with any Crown debts, or with certain debts only, that all taxes on the land have been paid up to the first of January next preceding the filing of the peti- tion, that there are no writs of execution in the Sherifl^'s hands against any person interested in the land, and that the land has not been sold for taxes within eighteen months preceding the filing of the petition, or undei execution wiihin six months preceding. Proof is indispensable either that possession has always accom- panied the title under which the petitioner claims — or, that some sufficient reason exists for not adducing such proof, Se Wright, 2 Chan. Cham. R. 355. Where the petitioner's title was acquired within two years before the filing of the petition, the Sheriffs certificate is required as to executions against the prior owner, as any such executions, if duly renewed, may be binding on the land, 11 Lyons, 2 Chan. Cham. K. 357. Where the Registrar is unable, from the description of the pro- perty, to certify that the memorials mentioned arc all that affect the land, a Surveyor or other competent person should examine the property, and after examining the Registry books, should make an affidavit that the memorials produced are all those that affect the land. Where the deeds are lost or cannot be produced, the same evidence of their loss and contents must be given as on a trial at law, before secondary evidence can be received. Where the title is derived through a Sheriffs sale for taxes, the affi- davit must shew that all the requirements of the Statute have been strictly complied with. •(Si ;jji if 152 APP£lfDlX. y^^ i 5 By evidences of title^ in the first clause, is meant especially written documents other than title deeds ; not proofs of facts, which are provided for by clause five. Where a deed is executed under a power of attorney, the power of attorney must be produced, or secondary evidence of it given, as in the case of any other title deed, and evidence should be furnished that at the time when the power was acted upon, the owner was alive; except in cases coming under the 29 Vic. c. 28, ss. 23, 24. Clause two shews that until the certificate of filing the petition is registered, the particulars to support the application cannot be delivered to the Referee, tor prior to the registering the certificate a certified copy of all memorials "up to the time of registering the certificate" cannot be procured, see Re Bill, 2 Chan. Cham. R. 348. If a petitioner intends to use certified copies of memorials na evidence, he must also procure and produce ' certified copies of the affidavits of execution. The concise statement of facts spoken of in clause four, is intended to embrace all facts necessary to make out the title, and which do not appear on the documents produced — as title by length of posses- sion, deaths, descents, &c., dates being given in all cases where possible. * The proof of facts referred to in clause five, such as length of possession, marriages, deaths, loss of deeds, searches for them and their contents, should accompany the deeds when delivered to the Referee, unless viva voce evidence has to be given. Where the wife of a grantor does not join in a conveyance, evi- dence should be given that the grantor was unmarried, or that dower is barred by time or otherwise. The word Judge, in sub-section 6, includes Referee, see sees. 25, 52. V^I. The affidavit or deposition of the person whose title is to be investigated, shall stale to the effect, that to the best of his knowledge and belief he is the owner of the estate or interest (whatever it is) which is claimed by the petition, subject only to the charges and incum- brances set forth in the petition or in the schedule there- to, or that there is no charge or incumbrance affecting the land ; that the deeds and evidences of title which he produces, and of which a list is contained in the Schedule produced under the preceding section, are all the title deeds and evidences of title relating to the land that are APPENDIX. 153 lof lin led las lis ie a , ; in his possession or power, and that he is not aware of the existence of any claim adverse to or inconsistent with his own to any part of the land or to any interest therein, or if he is aware of such adverse claim, he shall set forth every such adverse claim, and shall depose that he is not aware of any except what he sets forth ; and the affida- vit or deposition s'hall also set forth whether any one is in possession of ihe land, and under what claim, right or title ; and shall state that to the best of the deponent's knowledge, information and belief, the said affidavit or deposition, and the other papers produced therewith, fully and fairly disclose all facts material to the title claimed by the Petitioner, and all contracts and dealings which affect the same or any part thereof, or give any right as against the applicant. If there is more than one petitioner, all should join in the affidavit, or some reason be assigned why tht do not. Where property is claimed by or on behalf of a wife under a con- veyance made to her 'iring coverture, an explanation of the trans- action should be givei; 'n oath to shew that it was bona fide, arid was such that the husband creditors could have no claim on the pro- perty; the affidavits for . lis put pose should be by the claimants, and should be satisfactorily corroborated by disinterested persons of known credibility, Re Lyons, 2 Chan. Cham. R. 357. VII. This affidavit or deposition may, in a proper case, be dispensed with, or may be made by some other per- son instead of the person whose title is to be investigated, or an affidavit or dep')sition as to part may be made by the one, and as to part by another, at the discretion of the Judge to whom the application is made ; and in such case, the affidavit shall be modified accordingly. See sections 26 & 52 as to the powers of a Referee. • VIII. The certificate of the Counsel or Solicitor shall state to the effect, that he has investigated the title and believes the party to be the owner of the estate which the petition claims in the land in question, subject only U'! III \ WW I I 154 APPENDIX I (if such be the case) to any charges or incumbrances that may be set forth in the Schedule to the petition ; or that he so believes, subject to any condition, qualifi- cation or exemption to be set forth in the certificate), and that he has conferred with the deponent on the sub- ject of the various matters set forth in the affidavit or deposition referred to in the preceding two sections, and believes the affidavit or deposition to be true. IX. The Judge in investigating the title may receive and act upon any evidence that is now received by any of the Courts on a question of title ; and any evidence which the practice of English Conveyancers authorizes to be received on an investigation of a title out of Court ; or any other evidence, whether the same be or be not receivable or sufficient in point of strict law, or according to the practice of the English Conveyancers, provided the same satisfies the Judge of the truth of the facts intended to be made out thereby. As a general rule the evidence should include not only what a pur- chaser's solicitor would satisfy himself of by search and enquiry according to the rules laid down by Conveyancers, but also what is necessary for a vendor to produce to a purchaser o \ a strict investi- gation of title. Higher evidence is necessary than such as would merely prevail in ejectment. There are erroneous judgments upon defective or unsound evidence which may be cured by another eject- ment ; but if the doubts upon a title should after completion ripen into defects, the purchaser may find it impossible to regain the position which he held before the contract. Thus a seven years' absence without tidings, though it prevails as evidence of death in ejectment, is clearly insufficient between vendor and pui jhaser, that the title is good against all the world, and not merely sufficient to prevail against certain contending parties. A vendor may therefore be required to furnish evidence which would be elicited by adverse proceedings, to prove or disprove facts, wliich, if he were a party litigant, it v/ould be the business of his opponent to negative or establish. Every material fact which is capable of being proved by indcipcn- dcnt evidence, ouglit to be proved; thus it is necessary to prove ' APPENDIX. 155 b- search for missing deeds ; an affidavit by the petitioner himself as to the search is not sufficient, Re Chamberlain, 2 Chan, Cham. R. 352. Where tliere is any doubt whether some person other than tae petitioner may not be interested in the property, notice should be given ; and the same should be done where the title is not a clear paper title, proved by the production of the original deeds. If the purchaser's title rests on the Statute of Limitations, notice should be given to the person said to be barred, as in various ways, as by acknowledgment of title, the effect of the statute may be defeated, Ee Chamberlain, 2 Chan. Cham. R. 352. So where secondary evidence is given by production of a memorial and affidavit of execution, if the memorial is not in full and not signed by the grantor, notice should be given to the grantor. In the case of a title derived under a sale for taxes, the person who but for the sale would be the owner, should have notice of the proceedings, and as a general rule, where the registry shews a con- veyf.ii?'; from a person, through whom the petitioner does not claim, Rxid who on registry has no apparent title, notice should be given to the grantee. The Referee must, however, in giving notice, exercise a discretion, to avoid, on the one hand, doing injustice to some per- son probably interested, and on the other hand putting the petitioner to unnecessary expense. The Referee has the same powers as a Judge, see sees. 25 & 52. X. The proofs required may be by, or in the form of, affidavits or certificates ; or may be given viva voce ; or may be in any other manner or form that under the cir- cumstances of the case is satisfactory to the Judge in regard to the matters to which the same relate. Frequently title deeds are lost or destroyed, and the party claiming under them is desirous of giving secondary evidence of their con- teats, and in such a case, before this secondary evidence can bo received, evidence of search in the proper quarter and proof of their destruction must be given. It is always important, and sometimes essential, to shew that possession has gone with the deeds. Where the patent is not produced, an exemplification or a certified copy must be got. XI. If the Judge is not satisfied with the evidence of title produced in the first instance, he shall give a rea- !i^ 156 APPENDIX. i v ■ f : r.-.i' •kw. sonable opportunity of producing further evidence, or of removing defects in the evidence produced. XII. Before giving a certificate or conveyance under this Act, the Judge shall direct to be published in the Canada Gazette^ and if he sees fit in any other newspa- per or newspapers, and in such form and for such period or periods as the Judge thinks expedient a notice either of the application being made, or of the order or decision of the Judge thereon ; and the certificate or conveyance shall not be signed or executed until after the expiration of at least four weeks from the first publication of such notice, or such other period as the Judge may appoint. XIII. When the Judge is satisfied respecting the title, and considers that the certificate of title can safely be granted without any other notice of application than the published notice so required he shall grant the certificate accordingly. "Where a Referee finds in favour of a title acquired by adverse pos- session, against the legal paper title, his certificate should show of what portion of the lot the claimant has been in possession ; as by occupation of one or more acres of a wild lot of land, a party will not acquire title to the whole lot, but only to so much as he is in actual possession of, Low v. Morrison^ 14 Gr. 192. Where a title by possession is relied on, notice of the application must, under the direction of the Referee, be given to the persons who but for such possession would be the owners, unless it is shown that due enquiry has been made for such persons without success, Re Chamberlain, 2 Chan. Cha,pi. R. 35-2. As to the duty of the Referee, see Chan. Con. Ord. 503, 504. XIV. In case of there appearing to exist any claim ad- verse to or inconsistent with that of ihe Petitioner to or in respect of any part of the land, the Judge shall direct such notice as he deems necessary to be mailed to or served on the adverse claimant, his solicitor, attorney, or agent. The word Judge includes Referee APPENDIX. 157 M it pn pe >n The effect of a certificate under this Act is so Btringent that great particularity must be exercised by the Court in seeing that all par- ties entitled to notice have been duly and regular'y served, and that strict proof of such service is given, Re Palmer, 2 Chan. Cham R. 851. Where the petitioner claimed the north-east part of a lot under a will devising the novth-west part, and it was alleged that the word " north-west " was a clerical error in the will, all the parties inte- rested in the opposite view were required to be served with notice of the application, signed by the Referee, unless a case was made for dis- pensing with sei'vice on some of them, He Lyons, 2 Chan. Cham. R. 867. XV. In all cases he may require from time to time any further publication to lake place, or any other notice to be mailed or served, that he deems necessary before granting his certificate. :1v XVI. Before a certificate of title is granted, satisfactory evidence shall be given by certificate, affidavit or other- wise, that all taxes, rates and assessments, for which the land is liable, have been paid, or that all except those for the current year have been paid. The Court has no jurisdiction to grant a certiiicate, unless all taxes except those for the current year have been paid. Re Chamberlain, 2 Chan. Cham. R. 352. XVII. Every claim of title under this Act shall be pre- sumed to be subject to the following exceptions antl qualifications, unless the petition for investigation ex- pressly alleges the contrary : 1. The reservations (if any) contained in the original grant from the Crown ; 2. Any municipal charges, I'ates or assessments there- tofore imposed for local improvements, and not yet due and payable ; 3. Any title or lien which, by possession or improve- ment or other means, the owner or any person interested m i!, %- ■h ,■ '"*■•'> 153 APPENDIX. v^4' in any adjoining land has acquired to or in respect of the land mentioned in the certificate ; 4. Any lease or agreement for a lease, for a period yet to run, of not exceeding three years, where there is ac- tual occupation under the same. XVIII. But if the applicant desires the certificate to declare the title to be free from the said particulars, or any of them, his petition shall so state, and the investi- gation shall proceed accordingly. XIX. Any person having an adverse claim, or a claim not recognized in the applicant's petition, may at any time before the certificate of title is granted, file and serve on the applicant, his solicitor or agent, a short statement of his claim, which may be in the form set forth in Schedule C. XX. This claim shall be verified by an affidavit to be filed therewith. XXI. Ii) case of a contest, the Judge may either decide the question of title on the evidence before him, or may refer the same or any matter involved therein to the full Court, or to any mode of investigation which is usual in other cases, or whish he may deem expedient, and may defer granting the certificate until afterwards, according as the circumstances of each case render just or expe- dient. Where the contestant having filed his claim verified by affidavit, and complied with the requirements of sections 19 & 20, does not take au appointment to proceed thereon, the petitioner ought to obtain a warrant from the Referee, on the return of which the Referee will regulate the course of proceeding and appoint a time for the claimant to proceed with the consideration of his title, and for the contestant to bring in and proceed upon his objections. At the time appointed the necessary evidence is to be adduced and the questions at issue argued. p APPENDIX. 169 It of yel ac- to or isti- XXII. The Judge may, at any stage of the cause, order security for costs to be given by the applicant for a cer- tificate, or by any person making any adverse claim. A contestant, served with notice, will not be prevented from asserting his rights until payment of costs of proceedingK instituted by him against the claimant, in repect of the property in question, ordered to be paid by the contestant, Shepherd v, Hayball, 13 Gr. 681. A Referee has the same power. XXIII. The Judge may order costs either as between party and party, or as between solicitor and client, to be paid by or to any person, party to any proceeding under this Act; and may give directions as to the fund out of which any costs shall be paid. See sees. 25 & 52, as to the powers of the Referee, Costs do not follow as a matter of course on proceedinge under this Act, Low V. Morrison, 14 Gr. 192 ; where a party having acquired title by adverse possession, institutes proceedings to quiet his title, he must establish his right at his own expense ; and although such adverse title is established, he may be made to pay the costs of an unsuccessful contestant, /&tc{. '^ XXIV. The Petitioner may, by leave of the Judge, withdraw his application at any time before final adju- dication, on payraient of all costs incurred in the inves- tigation either by himself or by any adverse claimant. XXV. With a view of expediting investigations, and subject to any general orders in this behalf, the Judge, if he sees fit, may refer any petition presented under this Act to the Master or a Deputy Master or any other officer of the said Court, or to any Counsel named by the Judge, and in such case the Referee shall proceed as the Judge himself should do under this Act, bad the reference not been made, and shall have the same powers. See Ord. 494, for the officers to whom petitions may be referred. XXVI. The Judge may also refer any title to coun'-^ I' \0t n. \!>l 'I i 160 APPENDIX. I |Pi t named by the Judge, for a preliminary report or exam- ination, and may call for the assistance of counsel in any other way and for any other purpose that may tend to the despatch of business under this Act, XXVir. The Judge may give one Certificate of title, comprising all the land mentioned ' "i the Petition, or may give separate Certificates as to i»ie title of separate parts of the land. XXVfll. The certificate of title may be in tiie form contained in Schedule D to this Act, and shall be under the seal of the Court, and shall be signed by one of the Judges and by the Registrar of the Court, and the same and the Schedule (if any) thereto, or a duplicate or coun- terpart of the same, shall be registered in full, both in the Court of Chancery and in the Books of the Registry Office of the County where tne land lies, without any further proof thereof. XXIX. A memorandum or certificate of the registra- tion may be endorsed on the certificate of title or on any counterpart or certified copy thereof thus : — " Registered in Chancery, , Page , A. G. Registrar. 186 Book Registered in the Registry Office for the County of , Book , Page , (Date) jtegistrar," and a memorandum or certificate so signed shall be evidence of the registration mentioned therein. XXX. The certificate of title when so sealed, sigaed and registered, shall be conclusive at law and in equity, and the title therein mentioned shall be deemed absolute and indefeasible, from the day of the date of the certifi- cate, as regards Her Majesty and all persons whatever, subject only to any charges or incumbrances, exceptions APPENDIX. 161 or qualifications mentioned therein, or in the Schedule thereto, and shall be conclusive evidence that every application, notice, publication, proceedings, consent and act whatsoever, which ought to have been made, given and done previously to the granting of the certificate, has been made, given and done by the proper parties. .,1 • • XXXI. After a certificate of title is duly registered, a copy of the certificate, purporting to be signed and certified as such copy, by the Registrar in Chancery, or by the Registrar for the County in which the land lies, shall be admissible evidence of the certificate for all purposes whatsoever, without further evidence of such copy, and without accounting for the non-production of the certi- ficate. XXXII. In case of a Chancery sale, the Court of Chancery, if it thinks fit, may investigate the title with a view to granting an indefeasible title, and in that case, a conveyance executed to the purchaser under the seal of the Court and purporting to be under the authority of this Act, shall have the same conclusive effect as a certificate. i mi XXXIII. The conveyance may be in the form set forth in Schedule E to this Act. XXXIV. Where a decree is made for the specific per- formance of a contract for the sale of an estate, and it is part of the (contract that the vendor shall have an inde- feasible title, the Court shall make the like investigation, and the conveyance may be in the form set. forth in the same Schedule E. XXXV. In case any person domiciled in Upper Canada, or claiming any real estate in Upper Canada, desires to establish, not his title to some specific property, but gen- erally that he is the legitimate child of his parents, or I 1C2 APPENDIX. II that the marriage of his father and mother, or of his grandfather and grandmother, was a valid marriage, or that his own marriage was a valid marriage, or that he is the heir, or one of the co-heirs of any person deceased, or that he is a natural born subject of Her Majesty, he may, if the said Court thinks fit, have any of the said matters judicially investigated and declared. XXXVI. The application may be by a short petition stating the object of the application. XXXVII. The petition shall be supported by an affi- davit of the applicant verifying the statements of the petition, and stating further that his claim is not dis- puted or questioned by any person ; or if his claim is to his knowledge disputed or questioned, he shall set forth the facts in relation to such dispute or question, and shall depose that he is not aware of any dispute or ques- tion except what he has set forth, and he shall state in the affidavit such other facts as may satisfy the Court of Ihe propriety of proceeding with the investigation. XXXVIII. The investigation shall be made by the same judicial authority, and in the same manner, and on the same evidence, and the same publication or other notice shall be required, and the same proceedings generally shall be had, and the certificate granted on such investi- gation shall be registered in the same way, and may be proved by the same evidence, as nearly as may be re- spectively, as in cases under the first section of this Act. XXXIX. This certificate when registpred shall be con- clusive and indefeasible in favor of the party on whose ap- plication the same was granted, and all persons claiming by, from, through or under him, and shall be prima facie evidence in favor of ali other persons, and against all persons of the truth of the fact therein declared. XL. A separate book shall be kept in Chancery for APPENDIX. 1G3 lire reg4s1ering of these and oilier certificales of title, and conveyances given under ihis Act, and the certificates and conveyance registered therein shall be numbered in order, and convenient indexes to the book shall be kept in such form as the Court from time to time directs. XLI. In case any person who, if not under disability, might have made any application, given any consent, or . done any act, or been party to any proceeding under this Act, is a minor, an idiot or a lunatic, the guardian of the minor, or committee of the estate of an idiot or lunatic, may make such application, give such consent, do such act, and be party to such proceeding zz «nch person might, if free from disability, have made, given, done or been party to, and shall otherwise represent such person for the purposes of this Act ; and if the minor has no guar- dian, or the idiot or lunalic no committee of his estate, the Court or Judge may appoint a person with like power to act for the minor, idiot or lunatic ; but a mar- ried woman shall, for the purposes of this Act, be deemed a feme-sole. ^ XLII. After a certificate is granted in regard to any of the matters investigated under this Act, any party ag- grieved thereby may, on petition, and after satisfactorily accounting for his delay, have the title or claim re-inves- tigated on such terms as may be juvst. XLIII. But no proceeding on such petition shall affect the tiile of any person who, in the meantime, and after the registration of the certificate, shall have acquired, by sale, mortgage or contract, for valuable consideration, any estate or interest in the land specified in the certifi- cale of title ; or (in case the certificate was under the thirty-fifth section of this Act,) in any land or other pro- perly, the title to which was derived from, through or under the person named in the certificate, in the char- acter which is thereby declared to belong to him. m n ■BBB ^ A' n^': i 5f«-i ^'\ " { 5«. ,H.,. iUti •■.. 5^' I: «.'■ 1' *<"" 1 1 ^•,. vi -•' h i' f :i: •;; f: #i «" 1 «■ 1 • ■} »• HiU. ;Wi i T ■ Lf ■ '"^Hl ; Wmi mm i! 1 164 APPENDIX. XLIV. Proceedings under this Act shall net abate or be suspended by any death or tran!?mission or change of interest, but in any such event the Court or Judge may require notices to be given to persons becoming interested, or may make any order for discontinuing, or suspending, or carrying on the proceedings, or otherwise in relation thereto, as under, the circumstances may be jasr. .. XLV. No petition, order, affidavit, certificale, registra- tion or other proceeding under this Act shall be invalid b}? reason of any informality or technical irregularity therein, or of any mistake not affecting the substantial justice of the proceeding. ZLVI. An appeal shall lie from any order or decision of a Judge under this Act to the full Court, and from the full Court to the Court of Error and Appeals, as in the case of Orders, Decrees, Rules and Judgtnerits, in suits. An appeal to a Judge lies from the order of the Referee, ; XLVII. The foregoing provisions of ^his Act 3hall be so construed and carried out, as to facilitate, as much as possible, the.obtaining of indefeasible titles by tht3 owners of estates in land, through the simplest machinery, at the smallest expense, and in the shortest time consistent with reasonable prudence in reference to the rights or claims of other persons. XLVIII. If in the course of any proceeding under this Act, any person acting either as principal or agent, shall, knowingly and with intent to deceive, make, or assist or join in or be privy to the making of, any material false statement or representation, or suppress, conceal or assist or join in or be privy to the suppressing, withholding or concealing from the Court any material document, fact or matter of information, every person so acting shall be deemed to be guilty of a misdemeanor, and on convic- APPENDIX. 165 5J I tion shall be liable to be imprisoned in the Provincial Penitentiary for a term not exceeding three years, and not less than two years, or to be imprisoned in any other prison or place of confinement lor any term less than two years, and in the latter case with or without hard labor, or to be fined such sum as the Court by which he is convicted shall award ; any order or declaration of title obtained by means of such fraud or falsehood, shall be null and void for or against all persons other than a purchaser for valuable consideration without notice. XL(X. If in the course of any proceeding before the Court, under this Act, any person shall fraudulently forge or alter, or assist in forging or altering, any certificate or oiner document relating to such land or the title thereto, or shall fraudulently offer, utter, dispose of or put off any such certificate or other document, knowing the same to be forged or altered, such person shall be guilty of felony, and upon conviclion shall be liable, at the discretion of the Court by which he is convicted, to be imprisoned in the Provincial Penitentiary for life, or for any term not less than three years, or to be imprisoned in any other prison or place of confinement for any term not exceed- ing two years, and in the latter case with or without hard labor. L. No proceeding or conviction for any act hereby declared to be a micdemeanor, shall affect any remedy which any person aggiieved by such act may be entitled to, either at law or in equity, against the person who has committed such act. LI. Nothing in this Act shall entitle any person to refuse to answer any question or interrogatory in any civil proceeding in any Court of law or equity, but no answer to any such question or interrogatory shall be admissible in evidence against such person in any civil proceeding. ■»" at"* 1G6 APPENDIX. Lll. The said Court may, from lime to time, make general orders for referring all or any applications under this Act, to any Master, Deputy Master or other officer of the Court, or to any CoLi.sel or other person appointed by the Court in that behalf, and to regulate the fees to be paid on such reference, and the Referee shall have the same powers as a Judge within the limits prescribed by such general orders ; and the Court may also, from time to time, make other general orders for the purposes of this Act, and for regulating the practice under the same ; and all general orders made in pursuance of this section may from time to time be rescinded or altered by the said Court. SCHEDULE A. IN CHANCERY. Form of Petition for the Investigation^ Sect. 3. In the matter of (the East half of lot No. in the Concession in the Township oj or as the case may 6e, describing the property very briefly.) To the Honorable the Judges of the Court of Chancerv. The Petition of Sheweth, — That your Petitioner is absolute owner in fee simple in possession (or as the case may bs,) of the following property (describing it). That there is no charge or other incumbrance affecting your Petitioner's title 1o ihe said land, (except^ 4^c., or, — that your Petitioner'^s title is subject only to the charges or incumbrances in the schedule hereto mentioned., and that the on'y persons having or claiming any charge, in- ^ ,4 m APPENDIX. 167 ;r lof ;d Ito je ^y le lof cumbrance^ estate, right or interest in the said land are set forth in the scheduh hereto annexed, and that the charge, incumbrance, estate, right or interest belonging to or claimed by each is therein set forth). Your Peti- tioner therefore prays that his title to the said land may be investigated and declared under the Act for quieting titles to real estate in Upper Canada. (Signed), A. B. or C. 1)., Solicitor for A. B. SCHEDULE B. Form of Registrar''s Certificate of an application under this Act, Sect. 4. I certify that an application has been made by to the Court of Chancery, under the Act for quieting titles to real estate in Upper Canada, for a certificate of title to the following lands [stating them.] ALEX. GRANT, Registrar. 1 : SCHEDULE C. Form of an Adverse ClaimanVs Statement, Sec. 19. In the matter of, &c., [as in petition). A. B of, &c,, claims to be the owner of the said land, &c., &c., {stating very briefly the nature of the claim and the grounds of it). Dated this day of 18G . (Signed), A. B. or C. D., Solicitor for A. B. ' ™«"*»-'»«W'Wll.H»» 16S APPENDIX- M' I ' SCHEDULE D. .-. ,^- JF\>rm o/ Chancery Certificate of Title, Sec. 28. No.- These are to certify under the authority of the Act for quieting titles to veal estate in Upper Canada, that A. B. is tlie legal and beneficial owner in fee simple in possession (or as the case may 6e), of all, &c., [here describe the property,] subject to the reservations men- tioned in the seventeenth section of the said Act and therein numbered respectively one, two, three and four, (or as the case may be,) and to (specifying either by reference to a schedule or otherwise any of the other charges or incumbrances, exceptions or qualifications to which the title of A. B. is subject) but free from all other rights, interests, claims and demands whatever. Or that [stating the facts found and declared under the thir- ty-fifth Section of this Act, and stating on whose applica- tion the same are declared.] In Witness whereof [Chancellor or one of the Vice Chancellors^] of the said Court has herennto set his hand, and the seal of the said Court has been hereunto affixed, this day of A. Grant, Registrar. CD. L. S. SCHEDULE E. Form of Chancery Deed, Sees. 3S and 34. No,- The Court of Chancery for Uppe^ Canada r»der the authoriiy of the Act for quieting titles to rt I ciate in Ujjper Canada, doth hereby grant unto A. B., ^x., [heire iii^l^^V APPEXUIX. 169 describe the premises sold^l to hold tho same unto the said his heirs and assigns forever [as the case may 6e,] subject to [here specify as in the case of the Chancery certificate of title.] In witness whereof [ ChanceVor^ or one of the Vice Chancellors of the said Court.,'] has hereunto set his hand, and the seal of the said Court has been hereto set, this day of , in the year of our Lord, A. Grant, Registrar. CD. L. S. CONSOLIDATED ORDERS OF THE COURT OF CHANCERY RELATING TO QUIETING TITLES. 492. Under the Act for Quieting Titles to Real Estate in Upjper Canada, the petition for an investigation of title is not to include two or more properiies dependant '^n separate and distinct titles ; but may include any number of lots or parcels belonging to the same person, and dependant on one and itie same chain of title. (31st Aug. 1867 ; Ord. 1.) In the petition a loose indefinite description of the property at' "part of lot, — " not saying what part should be avoided. If the land has been for some time in the occupation of any person, it may be proper to state, "now and for some time occupied by ." Sn if it adjoins any well known property^ or property occupied by some pul)lic company, it may be advisable to describe it as so adjoining. In the body of tho petition the description should be as certain as the conveyance, to identify the land claimed with the Registrar'.s certificate, aad in order that tlie certificate of title may follow it. For the same reasons the petition filiould properly describe the estate t.!r interest in the laad clniiaed by the petitioner, 403. Where an application is made under the second section of the Act, the Clerk of Records and Writs is to 170 APPENDIX. Si I attend one of the Judges with the petition for directions, before the same is referred for investigation. (31st Au 1867 ; Ord. 2.) - , :, ■■ •,..>;. ,.,,,.., , ,«;. , .,, ,... . ,,.. g- The first section of the Act for Quieting Titles enables any owner of an estate m fee simple in land in Upper Canada, or any trustee for the sale of the fee simple to have his title iulicially investigated. By the second section a Judge is given a discretion to permit "any other person who has any estate or interest, legal or equitable, in or out of land in Upper Canada," to apply for the investigation of his title, and a declaration of the validity thereof. 494. A petition under the Act may, at the option of the petitioner, be referred to any of the officers of the Court at Toronto, or to any conveyancing Counsel, who may from time to time be designated by the Court for the purpose ; or to any of the following Local Masters, viz., the Masters at Barrie, Belleville, Branlford, Brock- ville, Cobourg, Cornwall, Goderich, Guelph, Hamilton, Kingston, Lindsay, London, Ottawa, Owen Sound, Pelerborough, Sandwich, Sarnia, Simcoe, Stratford, St. Cntharines, Whitby, and Woodstock ; or to any other of the Local Masters who shall liereafler be designiilt'tl. (SUt Aug. 18G7; Ord. 3.) 495. To facilitate the proceedings in cases referred to the Local Masters, one or more Inspectors of Titles will be named by the Court, for the purpojses, and with the powers mentidlit'd in and provided lor by the 25ih and 2tjth sections of the nuid Act ; and on the petition are to be endorsed the names of the Inspector, or one of the Inspector^?, «s the case may bo, inid of the Local Master, thus : " To U relerred to the Master at , and to Mr. , Inspector of Titles." (31st Aug. 1867 , Ord. 4.) 496. Petitions filed unendorsed with the name of a Referee, are to be referred to the Referee in Toronto or to one of the Referees in Toronto (if more than one) in i '.'■B"- ■< APPENDIX. 171 Ins. Inor stco rotation or otherwise as the Court from time to time directs; but a petition indorsed with the name of any Referee is to be referred to him accordingly, unless the Court otherwise directs. (31st Aug. 1867; Ord. 5.) 497. Where the petitioner desires the reference to a Local Master, the petition is to be entered with the Inspector of Titles before being filed as required by the Statute, and the Inspector is lo note thereon the day of entering the same, adding to such note his own initials, and is thereupon to deliver the petition to the solicitor, or, if duly stamped, to the Registrar, to be filed. (31st Aug. 1867 ; Ord. 6.) 498. The Local Master shall be rntiilpd to confer or correspond from time to time with the Inspector of Titles, for advice and assistance on questions of practice or evidence, or other ques'ions arising under the Act or under these Orders. (31st Aug. 1867 ; Ord. 7.) 499. The Clerk of Records and Wriis is to deliver to the party filing a petition under the Act, a certificate of the filing thereof, for regisiralion in the proper County ; and thereupon the petition is forthwith to be referred and delivered ov posted by the Clerk of Records and VVrils to the Referee named for that purpose. (31st Aug. 1867; Ord. 8.) Until tlie ccitifieate of filing the pttition is reg'stercd the par- ticuliiis requiicd by sec. 5 of the Act cannot he delivered to the Eeferee, as until then certified copies of memorials "up to the time of tbe registering of a certificate of the petition'' as reciuired hy sec. 6, sub-sec. 2, cannot be procured. 500- The particulars necessary under the fiTth section of the Act to support the petition are to be delivered or sent by ihe petilioner or his solicitor to the Referee, and arc to be forthwith examined and considered by him. (31st Aug. 1867; Ord. 9.) Bee notes to 29 Vic. c. 25, s. 5. i II I Si 'Ji U MM '"I •» 1 I" ■ HI. 172 APPENDIX. 501. In every case of an investigation of rhe title to property under the said Act, the petitioner is to shew, by affidavit or otherwise, whether possession has always ac- companied the title under which he claims the property, or how olherwise, or is to sh av some suilicient reason for dispensing with such proof eitlier wholly or in part. (31st Aug. 1867; Ord. 10.) 502. Where there is no contest, the attendance of the petitioner, or of any solicitor on his behalf, is not to be required on the examination of the title, except where, for any special niason, the Referee directs such attend- ance. (31.«t Aug, 18G7; Ord. 11.) 503. If, on suf-h examination as aforesaid, the Referee finds the proof of title defective, hs is to deliver or mail to the petitioner or to his solicitor or agen% a memorandum of such finding, stating shortly therein what the defects are. (31st Aug. 1867; Ord. 12.) 504. When the Referee finds that a good title is shown, he is to prepare the necessary advertisement, and the same is to be published in the oflieial Gazette and in any other newspaper or newspapers in which the Referee thinks it proper to have the same inserted ; and a copy of the advertisement is also to be put up on the door of the Court House of the County where the land lies, and, unless the nearest Post Office is in a city, in some conspicuous place in the Post Office which is situate nearest to the propjerly the title of which is under inves- tigation ; and the Referee is to endorse on the advertise- ment so prepared by him, the name or names of the nevv.>*paper or newspapers in which the same is to be pohlished, and the number of insertions to be given therein respectively, and the period (not less than four weeks) for which the notice is to be continued at the Court House and Post Office respectively. (31st Aug. 1867; Ord. 13.) APPENDIX. 173 to .by ac- isoii )art. the be lere. One or at most two insertions in tlie Gazette will usually be suffi- cient. Proof tliat the notices have been continued for the proper period is as necessary n« proof of the oiiginal posting, Re Chamberlain, 2 Chan. Chnm. II. 352 ; Re J/i'/, Hid, 343. 505. Any notice of the oppllcation 1o be served or mailed under the fourteenth section of the Act, is to be prepared by the Referee; and directions are in like man- ner to be given by him as to the persons to be served with such notice, and as to the mode of serving the same* (31 St Aug. 1867; Ord. 14.) Sec. 14 requires, in cases where there appears to exist any claim adverse to or inconsistiint witli that of the petitioner to or in respect of any part of the land, that the Judge shall direct such notice as he dooms necessary to bo mailed to or served on the adveise claimant, Lis solicitor, attorney, or agent. 508. The Inspec'or, or Toronto Referee, is from time to time to confer with one of the Judges in respect of matters before such Inspector or Toronto Referee, as there shall be occasion. (3 1st Aug. 1867 ; Ord. 16.) 50'?. When any person has shewn himself, in the opinion of a Local Master, to be entitled to a certificate or conveyance under the Act, and lias published and given all ihe notices required, the Master is to write at the foot of the petition, and sign, a memorandum to the following effect : " I am of opinion that the petitioner is entitled to a certificate of title (or conveyance) as prayed '' (or subject to the following incumbrances, &c., as ihe case may be); and is to transmit the petition (if by mail the postage being prepaid,) with the deeds, evidence, and other papers before him in reference thereto, to the Inspector of Titles with whom the petition was entered ; and the Inspector is to examine the same carefully, and should he find any defect in the evidence of title, or in the proceedings, he is, by correspondence or otherwise, to point the same out to the petitioner, or his solicitor, or 174 APPENDIX, I.. til •I t:; ill to the Master, as the case may be, in order that the de- fect may be remedied before a Judge is attended with the petition and papers for approval. (31st Aug. 1867; Ord. 16.) 508. When the Inspector, or other Referee (not being a Local JVIat-ier,) finds that the petitioner has shewn himself entitled to a certificate of title, or a conveyance under the Act, and has published and given all the notices lequired, the Inspector or Referee (not being a Local Master,) is to write at the foot of the petition, and sign a memorandum to the same efiect as is required from a Local Master, and is to prepare the certificate of title, or conveyance, and is to engross the same in dupli- cate, one being on parchment or parchment paper ; and is to sign the same respectively at the foot or in the margin thereof; and is to attend one of the Judges therewith, and with the deeds, evidence, and other papers before him in reference thereto; and on the certi- ficate or conveyance b'.'ing signed by the Judge, the Inspector or olher Tieieree aforesaid, as the case may be, is to procure the same to be signed by the Registrar, and registered ; and the Clerk of Records and Writs is to deliver or transmit the same, when so signed and registered, to the petitioner, his solicitor or agent, for registration in the proper County. (31st Aug. 1867; Ord. 17.) 509. When a certificate of title or conveyance under the Act has been granted, the Inspector or Referee may, without further order, deliver, on demand, to the party entitled thereto, or his solicitor, all deeds and other evi- dences of title, not including aflidavits made, and evidence given in the matter of the title ; and Is to take his receipt therefor. (31st Aug. 1867; Ord. 13.) 510. Every Inspector and other Torn;:' j Referee is to keep a book, and to preserve therein a copy of all hia APPENDIX. 175 'de- ilh 167; Mng I'wn Ince the ga letters under these Orders, and is to prepare mon lily, for the information of the profession, a memornndurn of points of practice decided in matters under the Act. (31st Aug. 18G7; Ord. 19.) 511. The fees of solicitors and counsel, and lie fees payable by stamps, for proceedings undrr llic said Act, are, respectively, to be the same as for like proceedings in suits. (31st Aug. 18G7 ; Ord. 20.) 512. The Referee is, in lieu of all olher fees, to be entitled to a fee of fifly cenis for every deed in the chain of title, other than satisfied mortgages; and Referees who prepare the certificate or conveyance, are to have a fee of four dollars, for drawing and engrossing the same in duplicate. Besides these fees, ihe Referee is to have the same fees in respect of proceedings occasioned by any defects in the proof of title, which shall be mentioned in the Referee's memorandum referred to in Order 503, as are payable to the Master in respect of similar pro- ceedings in suits. No further or other fee is to be pay- able to the Referee in respect of any of the proceedings by or before him under the said Act in an uncontested cas<:. (SlstAug. 1867; Ord. 21.) 51ic-. In a contested case, the Referee is, in addition, to be entitled, in respect of the proceedings occasioned by the contest, to the same fees tlierefor as are payable to him for the like proceedings in suits. (31st Aug. 1867 ; Ord. 22.) 514. The fee of the Inspector of Titles on entering the petition with him is eight dollars, and no further fee is to be paid him for correspondence, examination of the title, drawing or engrossing certificate or conveyance, or for any other matter or thing done under the petition. (31st Aug. 1867; Ord. 23.) I i: <& ^ *», .sr, ^% %. % IMAGE EVALUATrON TEST TARGET (MT-3) C^/ /1V4. ^ ^& t I.C iiii2^ IIIIIM ■ 50 ""^" i.l i^ 1^ 1 2.2 Ul Hii lUWU 118 11.25 1.4 111 1.6 6" /] y: >:^ % o 7 KiotDgraphic Sciences Corpomtion "Q 4 c> \ 23 WIST MAIN SYREET WEBSTER, N.y. M580 (716)»72-4503 X / iS!9P 1: -H [if 176 APPENDIX. 155. The applicant or his solicitor is to pay, or prepay, as the case may be, all postages and other expenses of transmitting letters or papers. (.31st Aug. 1867; Ord. 24.) 516 Petitions under the thirty-fifth section of the Act are to be filed aiid proceeded with in the same manner (as nearly as may be) as petitions for an indefeasible ritle, and the fees of officers, solicitors, and counsel, are to be the same as in respect of the like proceedings in suits. (31st Aug. 1867; Ord. 25.) 11 •• mm r '■'.ft )•» 9 "ffV s of )rd. FORMS. Act ner bJe are in MEMORANDUM AS TO AFFIDAVITS, CERTIFI- CATES, &c., TO BE PRODUCED ON APPLI- CATIONS UNDER THE ACT FOR QUIETING TITLES. The following are the papers which it is necessary to deliver to the Referee in all ordinary cases under the Act for Quieting Titles; and they should be delivered at one time, not piece-meal. For the preliminary pro- ceedings see the Act (29 Vic. c. 25,) sees. 1, 2, 3 & 4, page 147 et seq^ and Consolidated Orders 492 to 499, page 171. 1. The affidavit of the petitioner under the 6th section of the Act. >?,(For form see page 179.) The affidavit should also state whether the petitioner is married or not. 2. Thtj certificate of his counsel or solicitor, under the 8lh section of the Act. 3. The County Registrar's certificate of the state of the title up to the time of registering a certificate of the petition being filed. 4. All deeds and evidences of title in the petitioner's possession or power. See Act, sec, 5, sub. sec. 1, page 150. 5. If the petitioner cannot produce all the deeds relating to the land, under which he derives title, he must procure and produce : — (a) Certified copies of the memorials (with affidavits of execution) of all other registered instruments affecting the title. (b) Affidavits of diligent search for the originals of all deeds to which these memorials relate, and of all other deeds relating to the title which are not produced. 12 !«C«^1BHRH ■HMnna 178 FORMS. V:' Vt I Jin r I ?' i Si »»• It' ii» i* (c) Proof of contents of the non-produced deeds. Those of which there are memorials in the short form in use before the laie Registry Act should be shown to have contained no trust, limitation, condition, exception or qualification not mentioned in the memorial. 6. If any of the deeds have no receipt for the conside- latioa endorsed, there must be produced some proof of payment of the consideration. 7. If there is no release of dower by the wife of a for- mer owner, show that he was unmarried when he con- veyed, or that his wife is dead ; otherwise the certificate of title must be subject to her dower. 8. Affidavits are required showing that possession has always accompanied the title under which the petitioner claims. (See Consolidated Order 501, page 172.) Also affidavits showing who is now in occupation, and under what title or claim of title. 9. SherifTs certificate that the property is not affected by any execution, sale under execution, or tax sale. See page 36. 19. Treasurer's certificate that there are no taxes in arrear and that there has been no sale for taxes. See page 37. 11. Collector's receipt for any taxes that are not shown by the Treasurer's certificate to have been paid. 12. Certificate or affidavit that there are no Crown debts affecting the property. See Con. Stat. U. C. c. 5 ; 29 & 30 Vic. c. 43, and page 34. 13. A concise statement of any other facts necessary to make out the title ; and affidavits or other evidence to prove the same. 14. Schedule of the particulars so produced. AFFIDAVIT OF PETITIONER. In Chancery. In the matter of I ids. in ave or ¥ORMS> 179 I' of the petitioner in this matter make oath and say :— 1 I am the absolute owner in fee simple in posses- sion (:or as the case may 6c, repeating the words of the petition) of the tollov/ing lands {describing the property) being the lands mentioned in the petition in this matter. * 2. There is no charge or other incumbrance affecting my title to the said land {except^ stating any incum- brances which may exist.) 3. I am not aware of the existence of any claim adverse to or inconsistent with my own to any pact of the land claimed by me or to any interest therein, iexcept^ specify the adverse claim^ if any^ giving the name and address of the claimant if known, and statu.^- how the claim arises.) 4. The deeds and evidences of title which I produce in support of my petition in this matter, and of which a list is «et out in the schedule of particulars produced by me in support thereof and marked as exhibit A, are all the title deeds and evidences of title relating to the said land which are in my possession or power. 5. The title deeds and evidences of title relating to the «aid land which are set out or mentioned in the schedule liereto marked as exhibit B, are in the possession or power of {naming the person.) 6. I do not know where, or in whose possession or power the title deeds and evidences of title set out or mentioned in the schedule marked as exhibit D are. For the said last mentioned title deeds I have caused the following searches to be made (set out the facts showing ihe searches which have been made for the missing deeds •and upon which it is intended to rely as sufficient to let in secondary evidence.) 7. I am (or A. B. is, show under what claim or title) in possession of the said land, and to the best of my Mmi 180 FORMS* I ''^^^i -m it * r' Ir ! i knowledge and belief possession has always accompa' nied the title under which I claim, since the year when one through whom I claim took possession and prior thereto the land was in a state of nature, {ijf possession has not always accompanied the title under which the petitioner claims, state correctly the facts as to the actual possession.} 8. To the best of ray knowledge, information and belief this affidavit and the other papers produced here- with in support of my petition, and which are set forth in the said schedule of particulars fullj and fairly dis- close all facts material to ray title, and all contracts and dealings which affect the same or any part thereof or give any right as against me. 9. There are no arrears of taxes due upon the said land, nor has the said land been sold for taxes during the past year, nor under execution during the past six months, and I do not know of any writs of execution in the handsr of the Sheriff against me, or affecting the said lands. iO. I am not aware of any insurance effected with any Mutual Insurance Company by any former owner of or any person interested in the said lands or any buildings thereon, nor do I believe there was any such^ and I have not myself effected any such insurance except, stating any insurance which may have been effec' ted.) 11. To the best of my knowledge, information ancJ belief, no person or body corporate has any right of way, or of entry ,or of damming back water, or of overflowing^ or of placing or maintaining any erection, or of prevent- ing the placing or maintaining of any erection on, in, to or over the said lands other than myself (except, giving the names and addresses of any parties having any easement or right, and stating the particulars and nature thereof,) and the said land is not subject to any easement OT dominant right whatever, {except as aforesaid.) FORMS. 181 12. I am married, and the name of my wife is (or, I am not married.) CERTIFICATE OF COUNSEL. In Chancery. In the matter of , I • of (Barrister, or Attorney at law,) hereby certify that as (counsel or solicitor) for the petitioner in this matter, I have investigated his title set forth in his petition, and believe him to be the owner of the estate which he claims in the petition (subject only to the charges and incumbrances therein set forth.) I further certify that I have conferred with the peti- tioner on the subject of the various matters set forth in his affidavit in support of his petition, and believe the same to be true. A. B. SHERIFF'S CERIFICATE. SherifPs office, County of day of 18 I hereby certify that I have not at the date hereof in my office any writs of execution against the lands of (or any or either of them) and that I have not had any such writs for thirty days preceding the date hereof. I further certify that I have not sold lot in the concession of the township of under any writ of execution for six months preceding the date hereof. F.W.J. Sheriff. 182 rORBfSU t: V ?5 h * CERTIFICATE AS TO TAXES. Treasurer's office, County of day erf 18 I certify that no charge for arrears of taxes appears at the date hereof in the books of this office against Lot No. in th^ concession of the Township of I further certify that the return of lands in the Township of in arrear for taxes for tiie year IS haabeen made to this office. And I further certify that the said land has not been sold for taxes for eighteen mcnths preceding the date hereof. S. T, Treasurer. AFFIDAVIT AS TO CROWN DEBTS. In Chancery. In the matter of I, of make oath and say : — I have carefully searched the register in the office of the Clerk of the Court of Queen*s Bench at Toronto, and I say that there has not been registered therein, any deed bond, contract or other instrument whereby any de..i, obligation or duty, was incurred or created to Her Majesty on the part of (naming the petitioner and all persons who before the 29 & 30 Vic. c. 43, had any estate in the lands in question) ^ or {save and except the several bonds and instruments hereinafter mentioned that is to say, setting otU any bonds). Sworn, &c. ADVERTISEMENT. In Chancery. In the matter of FORMS. 183 at iOt Notice is hereby given that A. B., &*.., has made an application to the Court of Chancery for a certificate of title to the above mentioned property under " the Act for Quieting Titles to Real Estate in Upper Canada," and has produced evidence whereby he appears to be the owner thereof in fee, free from all incumbrances (except^ stating the incumbrances if any) ; wherefore any other person having or pretending to have any title to or interest in the said land or any part thereof is required on or before day the day of now next ensuing, to file a statement of his claim in my Office at Osgoode Hall, in the City of Toronto, and to serve a copy on the said A. B. or on J. H., of the City of Toronto, his solicitor, and in default every such 3laim will be barred and the title of the said A. B. becomj absolute and indefeasible at Law and in Equity, subject only to the reservalions mentioned in the 17th section of the said Act and therein numbered one, two, three and four. Dated this day of 18 X. Y., Referee of Titles. NOTICE UNDER THE 14th SECTION OF THE QUIETING TITLES ACT. In Chancery. In the matter of Take notice that A. B., of, &c., has made an applica- tion to the Court of Chancery for a certificate of his Title to the above mentioned property, under '' The Act for Quieting Titles to Real Estate in Upper Canada ; " and take notice that if you claim any interest therein jou must lodge your claim in writing, stating the par- ticulars thereof at my Chambers in 184 FORMS. on or before the day of and serve a copy on the said A. B. or on J. H. of, &c., his solicitor, and in default thereof any claim, right, or interest, you may have therein at Law or in Equity will be for ever barred and extinguished. Given under my hand this day of 18 X. Y., : ' Referee of Titles. I? ;i ^m AFFIDAVIT OF PUBLICATION OF ADVERTISE- MENT. In CHAncERT. In the matter of I. A. B. of, &c., make oath and say: 1. A true copy of the advertisement now produced and shewn to me and marked as exhibit A, appeared and was published in the issue of the .Ontario Gazette on the day of 2. A true copy of the said advertisement also appeared and was published in each issue of the news- paper on the and days of 3. I have examined copies of the said Gazette and newspaper issued on each of the said days. Sworn, &c. J? , AFFIDAVIT OF POSTING UP THE ADVERTISE- MENT IN THE COURT HOUSE. Iw Chancery. In the matter of I. A. B. of, &c., make oath and say : i ^, FORMS. 185 ! a tor, rou ver E- ed ed tie ed rs- ad E- 1. That I did on the day of post up and affix in a conspicuous place in the Court House in the town of a true copy of the advertisement in this matter now produced and shewn to uie and marked as exhibit A to this affidavit. 2. That the said advertisement so posted up by me as aforesaid remained affixed up in the said place for the full period of one month. 3. The said Court House is the Court House of the County in which the latids in question in this matter are situated. "- n- Sworn, &c. AFFIDAVIT OF POSTING UP ADVERTISEMENT AT THE NEAREST POST OFFICE. In Chancery. In the matter of "^ I. A. B. of, &c., make oath and say : 1. I did on the day of post up in a conspicuous place in the post office in the Village of a true copy of the advertisement in this matter now produced and shewn to me and marked as Exhibit A. 2. The said advertisement remained where it waa posted up by me continuously for the full period of one month. 3. The post office in the Village of is the post office nearest the lands in question in this matter. Sworn, &c. INDEX. ABROAD, as to proof of death abroad without Issue, 62 ; proof or deeds executed abroad, 8, 29, 80, 31. ABSENCE) seven years absence does not raise presumption of death, J3, 62 ; when presumption of death arises from absence, 62. ABSENTEES, limitation of actions by, 61. ABSTRACT, perusal of by solicitor, 11. ACT OF PARLIAMENT, how proved, 80; all acts to be deemed public, 81 ; private act not notice, 81 ; recitals in private act must be proved, 81 ; proof of titles under, 81. ADMINISTRATION, LETTERS OF, are evidence of intestacy, 58 ; weight of such evidence depends on lapse of time, 59 ; purcha- ser cannot require them to be taken out, 59. ADVERTISEMENT, errors in, do not render sale under execution void. 111, 112 ; what advertisements of tax sales must contain, 101, 102 ; how long it must be published, 100, 101, 102, 10?; notices of tax sales to be posted up, 101. AFFIDAVITS, before whom affidavits of execution maybe sworn, 27, 29, 30 ; voluntary affidavits are received by conveyancers, 124 ; are of doubtful authority, 125. AGE, proof of, 63 ; certificate of baptism no evidence of age, 68. AMBIGUITY, parol evidence, when admissible to explain, 67. ANNUITY, is an incumbrance when charged on land, 48 : when pre- sumption that it is satisfied arises, 48 ; release of, 48. ASSESSMENT, what constitutes, 90. ATTESTED COPIES, when purchaser may call for, 114, 116; of records, none can be required, 115. ATTORNEY, POWER OF, should be produced and examined, 6; , when evidence that principal was living may be dispensed . with, 6, 7. . . B. BARGAIN AND SALE, deeds of, to be registered, 18 ; enrollment not necessary, 18. BIRTHS, evidence of, 63. BY-LA W, for special improvements, requisites of, 39 ; for selling road allowances, 82 ; requirements for validity of, 82 ; by [ I ' INOKX. 187 BY-LAW, {Continued.) . County Councils, 82 ; on petition of inhabitants, 83; applicn- tion of purchase money on sales under, 84; for purchase and sale of wet lands. 84. C. . •■ ■ CERTIFICATES, of title under Quieting Titles Act, effect of, 2 ; Skb QUIITINO TiTLKS. CHANCERY, filing bill not notice, 21 ; decrees may bo registered, 21 ; what purchaser under decree should examine, 72 ; when purchaser protected by decree, 12; more irregularities do not affect a purchaser, 78 ; same rule applies to purchaser under decree of foreclosure, 74 ; decree of foreclosure against infants should reserve day to show cause, 76 ; when decree against absent defendant becomes absolute, 76 ; decree for partition binding on infants, 76. COPIES, Skb Attbbted Copies. ■■ ■ ' , COLLECTOR, to make return of lands in arrear for taxes, 94, 95. COVENANTS, anything unusual in calls for iLqulry by purchaser, 5> COUNTY REGISTRAR, certificate of, on deed prima facie evidence of registration, 15. CROWN DEBTS, should be seatched for, 5 ; bind lands of debtor, 34 ; registration of bonds in Queen's Bench, 35 ;. arc no charge on lands since August, 1866, 85 ; how released, 86. CURTESY, when husband tenant by curtesy, 48 ; requisites to ten- ancy by, 48. CUSTODY OF DEEDS, who is entitled to, 118, 121 ; where vendor retains part of the land, 118 ; on sale in lots, largest purchaaer entitled to, 119. : ;. v. - .. DEEDS, when due execution of may be presumed. 8 ; when in cus- tody of third parties, enquiries should be made, 3; evidence of loss should be given, wjien hot produced, 3 ; loss of deeds not fatal to title, 4 ; when lost what vendor must show, 4 ; exami- nation of deeds by purchaser's solicitor, 5; how registered, 23; on tax sales, to be regi^tered.within eighteen months, 110. DECREE, Sbe Chancbuy. v- DESCENT, title by, unsatisfactory, 68 ; evidence necessary to make out title by, 58, 59; certi^cates proving, 60. . . . • DISCHARGE OF MORTGAGE, how executed, 9-; bow registered, 10; executor of mortgagee may execute, 10. DISTRESS, only remedy for levying taxes under etrlier acts, 8^ ; when necessary to show no distrt^ss on the land, o3 ; Sheriff's . * # T 188 INDJCX. W'r DISTRESS, (Continued.) duty as to, 99 ; Ticasurer should bo satisfied as to, before issn- iug warrant ^or sale, y9, 100 ; sale not illegal although distress on the land, 100. DOWER, howbarrcd, 7, 46,47; when evidence should bo required that no claim for exists, 4S ; whf . necessary to entitle to dower, 45. 46 ; within what time claim for, to be enforced, 46, 47 ; in equitable estates, 46; sale for taxes bars light to dower, 47; sale under execution does not, 47. DEVISE, exact terms of, should be considered, 66. DRAINAGE, by-laws for, 41. .. U. ' ■ , : ■ ; : fiVI^ENCE, written evidence of title should always be required, 1 ; should be preserved, 1 ; practice of conveyancers as to, 13 ; what evidence vendor may be required to furnish, 13 ; what purchaser entitled to, 14. EXECUTIONS, searches as to, 3, 36 ; sale under, does not bar wife's right to dower, 47. EXECUTOR, may discharge mortgage^ 10. H. HEiRSHIP, :)roofof, 60, 61. . ■ ^- . I. • • ■: IDENTITY, presumptions as to, 129. ' INTESTACY, letters of administration, evidence of, 68. 59 ; or will not devising land" in question, 61. L. LEASES, of tenants in possession should be exa,mined, 3. LEGACY, charged upon land, 48; proof of payments should be called for, 48 ; when paymert may be presumed, 48. LIEN, for unpaid purchase money, 6, 23; enquiry for, should bo accompanied by notice of purchase, 32 ; equitable liens abol- ished, 23. LIMITATIONS, STATUTES OF, i'lilcz uader good, 49; twenty years pos^cscion not sufficient, 50 ; state of title wIidu statute began to run to be con sidered, He ; statute slight protection where intestrtcy disputed, 59 ; in case of absentees, 51 ; bars only the person entitled to immediate pos.«ession, 51. ZIS PENDENS, certificate to be registered, 21- / Index. 18d !S9 M. SlAtlRlAGE, how proved, 63 ; general repute, ^vhen stifficient, 63 j such evider. "^ may be rebulted, 64. MEMORIALS, cedents of, 4, 24, when not evidence, 4; secondary evidence, when, 121, T22, 123. MISSING DEEDS, what vendor must show in case of, 4 ; proof of loss to let in secondary evidence, 4, 120, 121. MORTGAGES, discharge of, 9, 11 ; how discharge registered, 10, II ,' enquiry should be made as to amount due, 32. MUTUAL INSURANCE COMPANIES, liens of, should be enquired for, 3, 48 ; how far they extend, -iS ; registration not necessary to preserve 44. ■ it^ NOTICE, from suspicious circumstances, 11, 33; defective registra- tion is not notice, 16 ; actual notice defeats prior registration, 22 ; from recitals in deed, 128. P. PARCELS, correctness of description of, 6 ; particularity of descrip- tion for registration, 28. PATENT, should be examined, 2 ; conditions in old patents, 2 j mortgage may be registered before, 23 ; how patent registered, 23. PAYMENT, evidence thnS purchase money paid should be required where no endorsed receipt, 6, 33 ; Sheriff may receive payjient of ta^ies, 108. PEDIGREE, how proved, 60, 61. ^ POSSESSION, should always be enquired into, 1 ; raises presumption in favour of title, 1, 45; gives a good title, 49; purcbiiser com- pellable to take title by possession, 49, 50 ; shewing twenty years possession not sufiQcient, SO ; in case of absentees; SI ; forty years possession of wild lands, 58, 55 ; must be continu- ouF, 64. POWER OF SALE, is in the nature of a trust, 85 ; when general, mortgagee may sell by private contract, 86 ; mortgagee cannot purchase under, 86 ; when notice of exercising should be given, 80. PROBATE, Court of Probate not a Court of Iftecord, 116; attested copy of, only copy of a copy, 116. PRODUCTION, COVENANT FOR, purchaser entitled to di ads or cov- enant, 116. 118} ore real covenants) 116; when covenant lost, I 190 INDEX. It ,'! ■¥" PRODUCTION, COVENANT FOR, (Continued.) 116; form of covenant, 117; cannot be compelled undei cOV* enant for furtlier assurance, 118. PRESUMPTIONS, when presumption of putclaase money being paid arises, 6, 83^ no presumption of annuity being satisfied in less than thirty years, 48 ; when presumption of death arises, 18, 62) 130, 131. PUBLIC LAND ACT, dispenses with certain conditions in old patents, 2. PURCHASE MONEY) when payment of, may be presumed, C, 33 ; no lien for since September, 1866, 33» Q. QUIETING TITLES, objects of the act, 132 ; who may take advan* tage of, 183 ; application under, how made, 134 ; duty of solici- tor applying, 134 ; petitions how proceeded on, 134, 135 ; when several lots may be included in one petition, 135 ; description of property should be full and accurate, 136; particulars and evidence in support of petition, 136, 137, 139; what the evi* dence should include, 140; secondary evidpnce, 137; evidence on title derived under tax sale, 137, 142; petitioner*s affidavit, 138; certificate of counsel, 139; notice to be published, 140; how published, 140^ 141 ; apparent claimants to be notified, 141 ; strict proof of notices being given necessary^ 141 ; adverse claimants, how to come in, 142 ; how contested cases decided, 142 ; certificate may include several lots, 143 ; form of certifi* cate, 143; effect of certificate, 143; certificate to be subject to certain exceptions, 144 ; Court may on a sale grant a convey- ance, 144; when certificate may be moved against, 145^ when proceedings are not to abate, 146 ; security for costs may be ordered, 145 ; when petition may be withdrawn, 145 j how per- sons under disability may apply, 146^ QUIETING TITLES ACT, 29 Vic. c. 25, 147; consolidated orders under, 169. K. RECEIPT FOR PURCHASE MONEY, ordinary receipt ift body of deed no evidence of payment, 5 ; absence of endoroed receipt notice that purchase money unpaid, 6. RECITALS, recital that purchase money paid is evidence of pay* ment, 5 ; afford important secondary evidence, 125 ; of import* ant facts should not alone be relied on, 126; entitled to mote weight when possession accompanies deed, 126; sometimes control operative words, 127; alone nol evidence against i t, iNDex< 101 i ■ WECITALS, (Continued.) strangers, 12?; are adfiiissions by parties to the deed, 127 ; aa to notice by recitals, 128. REDEMPTION, owner of land sold for taxes may redeem, 108, 109* EEGISTRAR, Sbb County Kechstrab, Quieting Titles. REGISTEATION, defective registration not notice, 16 ; defects in past registration cured, 16, 31 ; under earlier acts, not impera* tive, 17 ; of wills within twelve months, 19 ; wills, how regis- tered, 23, 27; registration necessary to preserve priority, 20j 22 ; of powers of attorney, 21 ; of decrees and Chancery pro- ceedings, 21; registration is notice, 22 ; requisites of memorial, 24 ; all the requirements of the act must be complied with, 25 ; proof of execution necessary for registration, 29, 30, 31; She- riff's deeds to be registered within six months, 37. REGISTRY ACTS, object of, 17. S. BALE, na sale for taxes in less than six months from delivery of writ to Sheriff, 103 ; to be by public auction, 104 ; where sale to be held, 103, 104; land to be put up at upset price, 105; what part of lot to be offered, 105 ; sale of whole lot for taxes due on half illegal, 108 ; sale for partially illegal rate void, 106 ; She- riff's duty on sale for taxes, 106; Sheriff must sell while in office, 107. SEARCHES, should be made for incumbrances and in Registry office, 3, 16; for missing deeds, 120. SECONDARY EVIDENCE, proof of search for lost deeds necessary to let in, 4, 120; when memorials are evidence, 121, 122, 123; under Quieting Titles Act, 128, 124. SEWERS, rent for draining into, a personal charge, 40j SOLICITOR, duty of solicitor examining title, 1, 11. SPECIAL IMPROVEMENTS, enquiry as to liens for, 39 ; by-laws for, by City Councils, 39; requisites of such by-laws, 39; pro- visions as to cities extended to towns, 40 ; drainage of lands, 41; deepening streams, 42; sweeping and watering streets, 42 ; improving roads and btidges, 43. STATUTES, 32 Hen. 8, c. 1--70 ; 33 Geo. 3, c, 3—87; 36 Geo. 3, c. 5—15, 17, 24, 29; 35 Geo. 3, c. 8—18 ; 87 Geo. 3^ c. 7—7, 47 ; 43 Geo, 3, c. 12—87 ; 47 Geo. 3, c. 7—87 ; 48 Geo. 3, c. 7—7, 47 ; 50 Geo. 3, c. 10—7, 47 ; 61 Geo. 3, c. 8—87, 88, 92 ; 55 Geo. 8, c. 5—87; 58 Geo. 3, c. 8—29; 59 Geo. 3, c. 7—87, 89, 90, 92; 59 Geo. 3, c. 8—87, 92; 6 Geo. 4, c. 7— 87, 93, 96, 99, 100, 103 105, 108, 110; 9 Geo. 4, c. 8—87, 92; 4 Wm. 4, c. 1—18, 54 195 INDEX. STATUTES, {Continued.) Wm, 4, c. 19—87, 104; 1 Vic. c 20— 8V, 98; 2 Vice. 6—8} 4 & 6 Vic. C. IC— '8V, 93 ; 9 Vic. c. 34—9, 19 ; 13 & 14 Vic. c. 63—19 ; 13 & 14 Vic. C.-67— ST, 88, 89, 91, 94, 97, 99, 101, 105, 108, 110; 16 Vic. c. 182—87) 89, 91, 05, 97, 99, 100, 101, 108, 109; 16 Vic. c. 18?.— 87; 18 Vic. o. 127—21 ; 23 Vic. c. 2-2; 24 Vic. c. 40-'47 ; 26 Vic. c. 41— ?0 ; 27 Vic. c. 19—87, 88, 100 ; 27 & 28 Vic. c. 2t— 100; 27 & 'i8 Vic. c. 24—110; 29 Vic. c. 24—6, 0, 10, 15) 16, 22, 23, 25, 27, 30,81, 33, 87, 38, 110; 29 ■^^'ic. c. 25—2, 36, 72, 132, 133, 134, 136, 137, 138, 139, 140, 141, 142, 143, 144 ; 2d Vic. c. 28— ' ; 29 & 80 Vic. c. 43—35; 29 & 30 Vic. c. 51-40, 41, 42, 43, 82, 83, 84; 29 & 80 Vic. c. 53—38, 87, 88, 95, 97, 102, 105, 108, 100; 31 Vic. c. 1—81 ; 81 Vic. c. 80—40, 42; CoQ. Stat. U. C. c. 6—35, 36; Con. Stat. U. C. c. 12— 76, 77, 78; Con. Stat. U. C. c. 16—115; Con. Stat. U. C. c. 22—112 ; Ooa. Stat. U. C. c. 52—43; Con. Stat. U. C. c. 54— 39, 41, 43, 82, 83 ; Con. St.it. U. C. c. 65—89, 91, 96, 97, 99, ICO, 106, 108, Con. Stat. U. C. c. 72—63; Con. Stat. U. Co. V3— 71 ; Con. Stat. U. C. c. 82—60, 64, 65, 67; Con. Stat. U. C. • c. 84— f3, 46, 47 ; Con. Stac. U. C. c. 85—8 , Con. Stat. U. C. c. 88—51, 52, 54 ; Con. Stat. U. C. c. 89—5, 9, 10, 15, 21, 25 ; Ont. Stat. 81 Vic. c. 1—81 ; Ont. Stat. 31 Vic. c. 20—6, 9, 10, 15, 21, ''/2,23, 25, 27, 30, 31, 33, 37, 38, 110 ; Ont. Stat. 32 Vic. c. 7— 47 ; Out Stfkt. 32 Vic. c. 8—69, 70 ; Ont. Stat. 82 Vic. c. 9— 9; Ont. Stat. 32 Vic. c, 36—87, 89, 91, 07, 100, 102, 106, 108, 109. .SURROGATE COURTS, are now Courts of Record, 115. T. TAXES, searches should be raade as to arrears, 8, 37 ; form of oertifl- cate of no arrears, 38 ; distress only mode of collecting arrears under earlier acts, 87, 99 ; are a special lien, 91 ; ten per cent, to be addtid to arrears, 00, 91. TAX SALES, many are irr 3gu!ar, 86 ; Geo. 4, c, 7 first act allowing 6ai<5 for ftrrears, 87 ; Surveyor General's return foundation of taxation, 89 ; what his refurn contained, 87 ; now made by Commissioner of Crown Lands, 88 ; unpatented lands now lia- ble to bo sold, 88, 89 ; what tho assessment is, 90 ; Treasurer to keep account with each lot, 90, 91 ; arrears of taxes how increased, 90; howarrep^rs computed, 91 ; taxes a special lien, 91 ; amount asKessed in each year ibimerly limited, 92 ; Treaf- urer to make a return of lands in nrrear, 93, 96 ; and to adve)*- tise such arrears, 94; Collector to deliver an account of all unpaid taxes, 94, 95 ; Treasurer to notify the owners ol land, 94 ; Treasurer's books are ;)roof of fact that land in arrear, 98 ; wiit M INDEX. 196 *AX SALES, {Continued) to sell by whom issued, 97; patented lands to be distinguished, Vl ; omission to do so fatal, 98 ; writ must be under seal, 98 ; when writ can issue, 98 ; Sheriff to sell unless distress on the land, 99; Sheriflf's duty as to distress, 9>», 100; Treasurer to issue warrant if satisfied of distress, 'J9 ; Treasurer not now required to see if distress on land, 10; distress being on land does not avoid sale, loO; when and how Sheriff to advertise lands, 100, 101 ; what advertisement to contain, 101 ; how advertisement to be published, 101, 102, 103; how far omissions in advertising affect a- sale, 103; when and where sale to take place, 103 how lands to be offered, 104, 105; Sheriff's duty in selling, lOd 107 ; Sheriff may receive pay- ment of taxes after receiving writ, 108; after sale owner may redeem, 108 ; how land to be described in certificate or deed, 109 ; deed may be made by succeasor of Sheriff who sold, 110 ; deed to be registered within one year, 110. TENANTS, enquiry should be made of tenants in possession, 3, TITLE, may depend on deeds, wills, possession or inheritance, 3, 49, 1i8. VENDOR'S LIEN, for unpaid purchase money, 3, 23 ; enquiry should be made as to amount due, 82 ; when presumed satisfied, 6 ; binds land for twenty years, 33. VESTING ORDERS, Court of Chancery may grant, 77 ; vesting orders under trustee acts, 78, 79, 80. VOIJJNTARY AFFIDAVITS, are received by conveyancers, 124; are of doubtful authority, 25. WILD LAND, forty years possession may be necessary to give title, 63 ; possession gives title only to part actually occupied, 66, 56, 67. WILLS, within what time to be registered, 19 ; how registered, 23, 27 ; if executed must be produced though inoperative, 60, 66 ; when execution of may be presumed 64 ; evidence should be Cftiled for when attestation clause defective, 64 ; copy under, seal of Surrogate Court sufficient, 64; witnesses must sign in presence of testator, or of each other, 64, 65 ; evidence where testator a marksman, 66 ; if not proved, original must be pro- duced, 66 ; exact words of will should ^e considered, 66 ; as to after acquired property passing, 67 ; A'ills now speak from testator's death, 69 ; revocation of willa, 70 ; wills of married women, 71. ■-■^^