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H 1^ :::, A.e T H Entered according to Act of the Parliauient of Canada, in the year one thousand eight hundred and nmety-four. by Edwabd Douglas Armoob. at the Department of Vgriculture. chapt adde( receiA the fi M at-La press, TORONTO : PRINTED BY THE CAR8WBLL CO. LTD. 22, 30 Adelaide St. East. sand the PREFACE TO THE SECOND EDITION. rriHIS edition has been thoroughly revised, in some parts re-cast, and in othei-s, entirely re-written; and a chapter on Payment and Discharge of Mortgages has been added. It is therefore hoped that the profession will receive it with the same indulgence as they extended to the first. My thanks are due to Douglas Armour, Esq., Barrister- at-Law, who assisted me in putting the work through the press. ,/ E. D. A. T Titl arra grea that chai of ( wor as '^: tion r that conf frotr of th seve: the type dela^ FROM THE PREFACE TO THE FIRST EDITION. ri^HE author's first intention was to publish a new edition of Mr. Justice Taylor's book on the Investigation of Titles which proved so useful to the profession, and arrangements were made for that purpose. But after a great deal of labour had been expended, it was found that since the last edition was published the legislative changes were so numerous and radical, and the number of cases so great, that it was impossible to retain the scheme of that work. The attempt to bring that valuable work down to date was abandoned with much reluctance, as Mr. Taylor's great experience and well deserved reputa- tion had contributed to making his work authoritative. The scope of the present work is somewhat larger than that of Mr. Taylor's, but the author has endeavoured to confine himself logically to the treatment of the subject from the purchaser's point of view. The incessant and irritating amendments and alterations of the law by the Legislature necessitated the recasting of several chapters 'Mer they were ready for the press, and the re-writing of nearly a whole chapter after it was in type ; and this and other causes combined to produce some delay in publication. VI PREFACE. Tax titles and the law and practice und^r the Quietinj? Titles Act which were treated of by ]\lr. Justice Taylor have been omitted from this work. The former srJ>iect cannot be dealt with comprehensively; and to have gone into details would have inordinately increased the size of the work. Excellent American treatises on the subject are easily accessible. The opinion that the Quieting Titles Act is destined to be superseded by the Land Titles Act, and the fact that excellent and recent notes on the Act and rules have been publirhed, seemed to the author a good reason for omitting the subject from this work. * "■• »•= ♦ « The thanks of the author are due to W. D. Gwynne, Esq., who rendered valuable assistance while the work was going through the press, and compiled the index. TABLE OF CONTENTS. Preface Preface to second edition . PAGE. iii V PARTI. INVESTIGATION AND PROOF OF TITLE. CHAPTER I. OF THE DIFFERENT KINDS OF TITLE. Title defined, 1— marketable title, 2— Safeholding title, 2— Doubtful title, 3. CHAPTER II. OF THE purchaser's RIGHT TO A GOOD TITLE, AND HOW IT MAY BE WAIVED. 1. Open contract ; extent of interest ; absolute right to good title, i. Implies sale of whole of vendor's interest, and a fee simple, 4— vendor to produce evidence of ownership, 5— Right to title given by law, 5 — purchaser acquiring means to cure defeat, 6. 2. Waiver, 6. Purchaser's right may be rebutted (i) by matter before or contempora- neous with contract :— receiving notice of bad title at time of contract, cannot get good, 6 — contra, where contract provides for good title, 7— (ii) by contract itself :— contract must be clear, 7— (a) purchaser precluded from requisitions may show aliunde that title bad, 8 — Vendor bound to produce only evidence in his posses- sion must still make good title, 9— but may rescind without via TABLE OF CONTENTS. damaKea, 10— (b) purohaBer precludeii from any inquiry mnat take title, 10— but not where vendor represents >,'ood title, 1 1 — (o) contract for rescission on objections by purclinscr, not unreasouable or improiMjr, 12 — may be made by inortj^agee-vendor, 12 — construed Htrii-tiy, 13 — right absolute to rescind, 13 — no right if vendor knowingly made contract with defective title, or no title, nor can he wantonly rescind, 13 — where condition is as to title, vendor cannoti rescind for misdescription, 14 — unless it occurs through bad title, 14 — fraud disentitled vendor to rescind, 15 — so, refusing to give possession, IP— vendor must elect to answer requisitions or rescind, 15 — if contract is for rescission on purchaser's inaiating, IG — lecua where it is on takinn objections, 10 — notice of rescission need not call on purchaser to waive objections, 17 — when given, contract ended, 17 — condition against known defect should state it clearly, 18 — (iii) by matter subsequent to contract : — waiver, a question of fact, 19 — (a) taking possesHion ; securing purchase money etc. : — taking possession, equivocal, but evidence of waiver, 20— coupled with alterations in buildings is waiver, 21 — payment and security, 21 — building and asking for conveyance, waiver, also great delay, 21 — taking forcible possession, waiver, 22— railway contractors with right to take compulsorily do not waive title by taking possession, 23— judicial sale, 23— (b) re-sale may be waiver, 24 — (c) opinion of counsel not waiver, unless acted on, 24 — (d) preparation of convey- ance indicates acceptance, 25 — acceptance of conveyance from one tenant in common is not waiver of others' title, 25 — (e) particular objection, 25 — if cannot be removed, purchaser should insist on it or may waive, 26 — if removable, 26. CHAPTER III. THE ABSTRACT OF TITLE. 1. liifjht to abstract, 27. Right to, unless contrary stipulated, 27. 2. Length of title abstracted, 28. (i) Sixty years, good root, 28 — conventional limit, 29 — must commence with good root, 29, et seq. — (ii) more than 60 years : — where vendor has older deeds, need not abstract them, 32 — unless abstraot relates back to something derogatory, 83— (iii) less than 60 years ; Bolton v. London Scliool Board, recital of seisin in fee 20 years old, 34, et aeq. 3. Contents of abstract, 87. Should show every devolution of estate, 37 — (i) equitable interests need not be abstracted, 37 — effect of Registry Act, 38 — (ii) concealment of TAHLE OF CONTENTS. IX documents, criminal, 39 -effect of Vendor and Piircliaaer Act, 40— (iii) jrdrfect abstract, 40— should show unre>{i8tered aa well a:> registered instruments if essential, 41 — (iv) matters of title and matters of conveyance, 42, et neq. 4. Delivery of abntract — nerving ol>}ection», 45. (i) Practice between parties, regulated by contract, 4.'*— if not purchaser may limit time, 45 — time not of essence, 45 — conduct of parties or practice of court may regulate, 40— (ii) practice in Master's Office, 47. CHAPTER IV. REGISTRATION. 1. Sninmanj nf Reijiitrij Actn, 49. Registration not imperative under early legislation, 60 — not notice, 50 — later Acts made compulsory, regulated priorities, 51 — made notice in equity, 52 — equi cable interests void as against registered instru- ment, unless notice, 53 — registration notice ^er «e, 53. 2. Wluit constitutes registration, 54. Entry, filing etc., 54 — statute discussed, 55, et seq. — importance of, on account of notice, 02 — probably complete ac regards party when delivered to registrar, 04 — remedy against registrar, 05. 3. Leaseholds, 65. Leases for seven years and under need not be registered if possession taken, 6(5 — for less term with covrnant for renewal do not require registration, 66 — secus, with agreement for new lease, 66. 4. Equitable interests, 67. Not affected by old Acts, 68 — now void as against registered instrument, unless notice, 09 — applies to equities not evidenced by instruments capable of registration, 70 — (i) tacking abolished as against registered title, 71 — (ii) consolidation, how affected by Registry Act, 72. 5. Registrar's abstract, 73^ Should certify all instruments registered, 73 — not evidence of title, 74 — Should be made up from instruments, and not index, 74. 6. Itiglit to inspect books, 74. No right to inspect abstract in. Due execution presumed, 10(5— unless there is special reason contra, or suspicion attaches to them, 107. 4. Execution by attorney, 107. Deed executed by attorney 30 years old proves only that it was executed by a person purporting to be attorney, 107— appointment of attorney TABLE OF CONTENTS. XI must also be proveil, 107 — power of attorney for consideration irre- vocable except by death of constituent, 108 — when not revocable by death, 108, 5. Recitals, etc., 20 yean old, lOS). Becitals piitna facie evidence when 20 years old, 10\)— Bolton v. London School Hoard, 109, et seq. 6. Miscellaneous, 110. Acknowledgment of payment in doed, 110 — afHdavit on registered memorial probably proof of execution. 111 — statutes proved by Quef.n's Printer's copy, 111— official df.uraents proved by production may be proved by certitied copy. 111 — by-laws. 111 — documents of public character, 112 — proceedings in courts, 112 — Notarial acts of Quebec, 112 — patents; registrar's certificate of discharge of mort- gage ; wills ; births, deaths, and marriages, 113 — statutory declara- tions, 114. CHAPTER VI. VERIFICATION OF THE ABSTRACT: SECONDARY EVIDENCE AND I'PESUMPITONS. 1. Secondary evidence, 116. (i) Loss or destruction of deeds :— existence of deed must first be shown, 117 — (ii) search for lost deed should be exhaustive, 117 — should be sought for iu proper custody, 118 — 'Search should be made with witness, 120— (iii) memorials, when evidence undur V. and P. Act, 120 — (iv) certified copies should be made from deeds themselves, 122 — (v) recitals, evideuue between parties and privies, 122 — since V. anil P. Act, 123. 2. Presumptions, 123. Bule as to, 124 — (i) things rightly done — deeds : — presumption is in favour of order and regularity, 125— deeds 30 years old presumed valid, 125 — certificate of registration proves execution, 126 — identity of persons, 126 — (iii) officials and official acts, 127— (iv) life, death and survivorship : — presumption that life continues, 127 — of death after seven years, 128 — person uni..arried when last heard of pre- sumed to have died childless, 12U — no presumption as to survivorship between commorientes, 129, et teq. — (v) women past child-bearing, 130 — (vi) legitimacy and marriage, 131— (vii) satisfaction of mortgages, 133 — (viii) miscellaneous: — devise presmed to be accepted, 133 — possession presumed to be under rightful title, 134. xu TABLE OF CC:. TENTS. CHAPTER VII. INCUMBRANCES. 1. Mortgages and incumbrances generally, 136. Sale is assumed to be free from incumbrances unless otnerwise stipu- lated, 137 — outstanding incnmbL-ance, matter of conveyance, 137 — vendor must remove, but purchaser may apply purchase money on, 138 — where purchase money payable by instalments, 138 — pur- chaser's rights as to incumbrance after conveyance, 139 — covenant against incumbrances, what is breach of, 141 — sale subject to incum- brances should so state, 141 — distinction between sale of land subject to incumbrance and sale of equity, 142 — liability of purchaser assuming mortgage, 143 — should inquire of mortgagee, 145 — mort- gage for fluctuating -^um, 146. 2. Taxes, 146. Are a lien on land, 146 — Search should be made for sale within eighteen months, 147 — apportionment of current year's between vendor and purchaser, 148 — arrears, liability for, 148. 3. Local improvements — Drainage — Sewers, 149. For what may be imposed, 149, et seq. — local improvement rates are incumbrances, 151 — existence of, not breach of covenant against incumbrances, 151 — but, before conveyance, vendor must remove, 153. 4. Executions, 154. (i) general remarks ; judgment does not bind lands, 154 — origin of fl. fa. lands, 154 — sheriff's deed, registration of, 155 — when writ binds, 166 — (ii) mortgaged lands, 157 — equity must appear on face of deed, 158 — when bound by writ, 158 — equitable execution, 160 — receiving order, 161 — (iii) equitable estates bound by writ, 161 — (iv) free grant lands not bound, 162. 5. Registered clouds, 163. Fraudulent deeds ; bastard deeds, 164 — Deeds void on face ; voluntary deeds, 165. 6. Vendor's lien, IC^. Void as against registered title unless notice given, 168 — satisfaction and assignment of, 168. 7. Croxon bonds, 169. Formerly bound though no default, 169 — now bind to no greater extent than between subject and subject, 169. TABLE OF CONTENTS. Xlll 8. Lis pendent, 170. Foundation of rule as to» 170— What constitutes lis pendens, 171 — conveyn.nce pendente lite, 172 — where title not called in question certificate is abuse of practice of court, 173 — formerly could not be discharged, 173 — may now be discharged pending action, 174 — not an incumbrance, but vendor must remove, 175. 9. Doiver, 175. Requisites of, 176— wild lands, 177 — joint estates, 177— remainders and reversions, 178 — partnership property, 178 — equitable estates, 178— mortgaged lands, 179, et seq.— mode of computing, 182— sheriff's sale does not affect, 183 — mode of barring, 183. 10. Tenancy by the curtesy, 184. Requisites, 184 — effect of Married Women's Acts upon, 185, et seq.— effect of Devolution of Estates Act upon, 196 — where wife's estate equit- able, 197. 11. Easements, 198. By implied grant not within Registry Act, 198 — air and light, 199 — severance of tenement, 20^^— drainage and aqueduct, 201 — lateral support, 202 — water, 202 — rights of way, sale by plan, 203 — effect of registering plan, 204 — way of necessity, 206— co-extensive with the necessity, 207. 12. Mechanics' liens, 209. What constitutes a lien, 209 — arises out of conti'act, 210 — on what lien attaches, 211— in whose hands binds lands, 212 — public school site exempt, 213— area of land affected, 213 — effect of Registry Act on, 214— preservation of by registration, 214 — priority, 215 — mortgaged lands, how affected, 217 — liens in cities, 218. CHAPTER VIII. PAYMENT AND DISCHARGES OF MORTGAGES. 1. Right to reconveyance, 220. Mortgagor may require reconveyance, 220. 2. Effect of statutory discharge, 220. Is merely receipt till registered, 221 — operates as reconveyance thereafter, 221— in whom estate vests by effect of discharge, 222, et «eg.— name of person paying mortgage need not appear, 224 — does not affect right of Bubrogation, 224. xiv TABLE OF CONTENTS. 3. Assignment in lieu of reconveyance, 224. Mortgagor may require assignment, 224— "mortgagor " means person entitled to redeem, 225— right to assignment depends on right of redemption, 227— mortgagee in possession need not assign, 227. 4. Surviving mortgagees and executors, 228. Surviving mortgagee of several may discharge, 228— but only on actual payment, 228~diricharge by one executor, 229. 5. Discharges by married women, 231. May discharge alone and without examination, 231— recent legislation contradictory, but wife may discharge alone, 232. chaptee ix. purchaser's right to deeds. 1. Production, 234. Production not essential under registration system, 234— but purchaser entitled to demand them, 234— vendor retaining land covered by deeds, 235. 2. Recovery after contract, 236. Purchaser cannot recover documents relating to collateral matter, 236 other documents go with land and may be recovered, 236. 3. Custody, an(7 covenant for production, 236. Of persons having equal interests the first who obtains deeds may retain them, 237— purchaser of most valuable of several lots takes deeds, giving covenant to produce, 237— covenants for production run with land, 237. CHAPTER X. DOUBTFUL TITLES. 1. Origin of the doctrine, 239. Arises out of jurisdiction in specific performance, 240— history of, 241 sending cases to law, 242— doctrine purely equitable, 243. 2 Amount of doubt necessary, 244. Probability of litigation, 244— ques'ions of law now generally decided, 245. TABLE OF CONTENTS. XV srson ht of :tual ition laser i by 36— may eikes tion ti- led, 3. Classijkation of doubtful titles, 246. Division of the subject, 246— (i) probability of litigation, 246 — adding third parties, 2i7— Quieting Titles Act, 248--{ii) difference of judicial opinion; between courts of co-ordinate jurisdiction, 249 — past adverse decision doubted ; past favourable decision doubted, 250 — between appellate and inferior courts, 251 — reasonable doubt, differ- ence of le^al opinion, 252 — construction of instrument, general principle, 252 — interpretation of particular instrument only, 253 — general principle of law, 253 — uncertainty of fact, 255 — negative proof, 255 — presumptions, 256 — questions of conveyance, 257. PART II. PARTICULAR TITLES. CHAPTER XI. TITLE BY POSSESSION. 1. Nature of evidence, 260. Facts proved by declarations, though purchaser may require oath and cross-examine, 260 — state of title when possession commenced should be shown, 261— vendor must deliver abstract, 262 — vendor should negative acknowledgments, 262. 2. Operation of statute — extinction of title, 263. Operati' m of modern statute, 263 — parliamentary conveyance, incorrect expression, 264 — statute operative, when, 265. 3. Commencement of running of statute, 265. Yacany will not cause, 265 — wrongful taking makes commencement, 266 — running of statute cannot be affected by subsequent settle- ment, 266. 4. Successive trespassers, 266. Disseisor has transmissible interest, 266 — successive independent tres- passers do not bar right, 267, et seq. —true owner, though absent, in constructive possession on vacancy occurring, 268 — there must be a person to be defendant or statute does not run, 269 — as betwCwn trespassers, 270. 5. Area affected by possession, 271. (i) Mere trespasser confined to land actually occupied, 271 — no construc- tive possession by, 272— statute negative in operation, 273 — (ii) entry under defective title, 274. XVI TABLE OF CONTENTS. 6. AcknaioledgmenU, 275. Must be in writing, 275 — trespasser may ustop himself, 275 — parol evidence of lost acknowledgment, 276 — acknowledgment must be signed by person giving it, and made to owner or his agent, 276 — no form necessary, 277 — notice to quit by owner insufficient, secus, by trespasser, 278 — effect of acknowledgment, 279. CHAPTER XII. TITLE BY INHERITANCE, SUCCESSION AND DEVISE. 1. Inheritance., 280. Periods to be observed, 281 — (i) evidence generally, 281 — letters of administration, 281— Begistry Act, 282 — issue of letters cannot be insisted on, 283— (ii) descent before 1852, 284— mode of proof, 284 — (iii) descent after the 1st January, 1852, 285 — (a) estates pur autre vie, 286 — (iv) statutory evidence, 286 — certificates by various persons,. 287 — other evidence, 289. 2. Succession by personal representative, 289. (i) Trust estates, 289 — pass to personal representative under Devolution of Estates Act, 290— (ii) bare trustee, definition cf, 290 — trustee ber. ^ficially interested, 291— trustee with duties, 292 — Act? aimending Devolution of Estates Act do not affect, 293 — (iii) personal representa- tive of vendor, 294— (iv) Married Women's Property Act, 1884, 294— (v) Devolution of Estates Act, 295 — comparison with Roman law, 296— heir excluded, 297 — administrator's rights, 297 — should convey to beneficiaries, 298 — * rhere infants concerned, 299 — mortgaged land devolves subject to mnrtguge, 299 —amendments to act, 300 — land thereunder shifts into beneficiaries unless caution registered, ' 301 — caution may be registered after time for expired, 302 — effect of such registration, 303. 3. Wills, 304. Proof of, 304— (i) before 1874, how executed and attested, 305— (ii) after 1874, 306— (a) attestatior. 306— how witnesses should sign, 307, et seq. — should see testator sign or acknowledge, 310 — witness legatee competent to prove will, 310 — (b) execution, 311 — obliteration or alteration, 312 — (c) miscellaneous — appointment by will, 313 — sale and mortgage by executors, 313— infant's will void, 314 — (iii) married woman's will, 314, et seq. — (iv) registration, 316 — infancy not an inevitable difficulty, nor destruction under certain circum- atanoes, 316. TABLE OF CONTENTS. XVU CHAPTER XIII. CONVEYANCES BY MARRIED WOMEN. 1. Defective certificates, 318. Certificate formerly necessary to valid conveyance, 318 — remedial statute, 319— exceptions to, considered, 320, et seq. 2. Joinder of the husband, 325. Before Ist July, 1884, husband necessary party nnless land separate estate, 325 — exceptions, 326 — Married Women's Property Act, 1872, effect of. 326 — Act of 1884 dispensed with husband's assent, 328. 3. Statutory separate estate, 330. Act of 1872 made land separate estate. 330 — Revised Statute, 1877, restricted its operation, 332 — Act of 1884 made land separate estate, 333 — effect of this Act considered, 334. 4. Tenancy by entireties, 336. Effect of Married Women's Property Act upon, 336 — cases thereon show that estate is now a jomt tenancy, 337. 5. Summary, 338. Periods of legislation and the different effects summarized, 338. CHAPTER XIV. JUDICIAL TITLES. 1. Judicial sales, 339. Purchaser at judicial sale must search title, 339 — order of court not to be invalidated against, 340 — except in case of fraud, 341 — trustee buying with leave, 342. 2. Vesting orders, 342. Purchaser need not take vesting order, 343 — court may vest interest of incumbrancer on payment into court, 344. 3. Sales under execution, 345. What may be sold, 345— what may not be sold, 346 — free grant land, 347 — sale of equity of redemption, 347 — advertising sale, 348— errors in advertisement do not avoid sale, 349 — writ must be current, 350 — successor to selling sheriff may convey, 351 — sale does not affect dower, 352. b XVlll TABLE OF CONTENTS. CHAPTER XV. SALES UNDEU POWERS IN MORTGAGES. 1. Form a7ul cjject of the power, 353. Mode of creation, 353 — short form power, 353 — Devolution of Estates Act, effect of, 351 — assigns, 354 — effect of altering short form, 35G — improved form of power, 357 — implied power, 358 — power may be exercised though mortgagor barred, 358— or after defective fore- closure proceedings, 359. 2, Notice of sale, 359. Power without notice valid, 359 — mortgagee must act prudently, 360 — notice must be reasonable if no time fixed, 360 — statutory power only exercisable after notice, 360 — when notice can be given, 361 — should specify its purpose, 361 — should be given to mortgagor and assigns, 362— effect of Devolution of Estates Act, 363— on whom notice should be served, 364 — execution creditor, an assign, 365 — modes of service, under statutory power, 365 — notice when given, stays proceedings, 368 - liow this may be avoided, 369. 3. Sale and conveyance, 369. Power must be exercised for legitimate purpose only, 369 — sale must be bona fide, 370 — power to sell land does not authorize sale of timber, but authorizes exchange, 370 — mortgagor's concurrence unnecessary, 371— mortgagee must act prudently, 371 — but need not wait for rise in value, 372 — may make special conditions, 372 — mortgagee not a mere trustee, 374 — but cannot buy, nor can any one for him, 374 — second mortgagee may buy, 375 — sale uncompleted cannot be treated as a nullity, 376 — equitable mortgagee selling must procure convey - ance of legal estate, 376 — form of conveyance under power, 377 — not operating as exercise of power will operate as assignment of mortgage, 377 — effect on purchaser, 377. A PRECEDENT FOR AN ABSTRACT OF TITLE. FAOa Preface 379 Precedent 380 TABLE OF CASES. A. Abel V. Morrison, 53, 81, 1G9 Abbott & Metcalf, Re, 3(55 Abraham v. Abraham, 87, 157 Adams v. Lou^hman, 203 Addison v. Walker, 99 Agency Co. v. Short, 2C5. 206, 269 A^ra Bank v. Barry, 38, 118, 136, 234 Ainsworth, In bonis, 312 Alderson v. P^l^ey, 227 Aldous V. Hicks, 143 Aldwell V. Aldwell, 23, 24, 25 Alexander v. Crosby, 24, 122, 371 V. Mills, 242, 252, 253 Alison, Re, 262, 263, 358 Allan V. Levesconte, 326 Allen V. Taylor, 200 " V. Edinburgh Life Asa. Co., 345 Allison V. Rednor, 125, 127, 268 Annandale v. Harris, 123 Anonymous, 292, 360 " V. Handcock, 291 Ansley v. Breo, 117 Anstee, In bonia, 308 Appleton V. Braybrook, 101, 106 Arbib & Class, lie, 18 Archer, In bonis, 308 Armstrong, Re, 150 •• V, Auger, ]51, 153 Arner v. McKenna, 266 Arnold! v. Gouin, 209 Arthur, In bonis, 312 Ashburner v. Sewell, 14 Aaher v. Whitlock, 266, 267, 270 Assignment and Pref. Act, Re, 87 Attorney-General V. G.E.R. Co., 303 " •• V. Pomfret, 292 Ansmiin v. Minthorne, 262 Avarne v. Brown, 41, 12 B. Baird, R,; 304 Baker v. Wilson, 132 Baldwin v. Diiignan, 87 Ballard v. Sliutt, 20 Bank of Montreal v. " " V. Baker, !lO, l-iO Fox. 47, 118. 150 Stewart, 09 Barber V. McKay, 88, 89 Barclay v. Raine, 237 Barlow v. Rhodes, 206 Barr v. Doan, 101, 136 Barry v. Anderson, ii.'O Bartlet v. Jull, 362, 364 Battersbee v. Farrington, 122 Bayman v. Gutch, 243 Baynton v. Collins, 335 Beaty v. Shaw, 231 Beatty v. Beatty, 176 Beavis v. MoGuire, 180 Beck V. Moffatt, 83 Beckett v. Howe, 313 Beioley v. Carter, 252 Bell, Re, 117 '* V. Chamberlen, 99 " V. Holtby, 2.52 " V. Walker, 69. 81, 90 Bellamy, Re, 195, 196 Ex p., 291 V. Sabine, 170 Bennett v. Davis. 198 V. Hamill, 339 Berkeley v. Dank, 42 XX TABLE OF CASES. i m m ill I Berry v. Young, 94 Beftt V. Hamand, 8, 11 Bethune v. Calcntt, 08 Binka v. Ld. Rokeby, 141 Birmingham v. Rosh, 200, 201, 207 Biscoe V. PerkinH, 241, 251 " V. Wilks, 251 Bishop of Winchester v. Paine, 172 Black V. Fountain, 180 Blackburn v. Smith, 41 Blackford v. Kirkpatrick, 22 Blacklow V. Laws, 19, 45 Blosse V. Clanmorris, 241 Bobier & Ont. Inv. Asa., lie, 94, 106, 167, 175 Boehm v. Wood, 45 Bolton V. Bolton, 206 " V. London School Board, 30, 34, 109 Bondy v. Fox, .W, 316 Bonter v. Northcote, 184 Booth's Trusts, Re, 299 Boucher v. Smith, 60, 51, 54 Boughton V. Jewell, 235, 237 Bousfleld V. Hodges, 19, 372 Bouatead & Warwick, Re, 27, 114, 256, 260, 262 " V. Whitmore, 190 Bowen v. Evans, 341 Bower v. Cooper, 4 Bowman v. Hyland, 13, 14, 17 Bown V. Stenson, 20, 22 Boyd V. Petrie, 358 Boys V. Wood, 276 Bradburn v. Hall, 350 Braddock, In honu, 309 Bradford v. Belfield, 355 Brady v. Walls, 49, 107, 166, 261 Bramwell v. Harris, 256 Bratt V. Lee, 118, 120 Braybrook v. Inskip, 41 Breeze V. Midland R. Co., 213 Brega v. Dickey, 65, 73 Brethour v. Brooke, 370 Brwwer v. Broadwood, 5, 260 Bridges v. Real Estate L. Co., 69 Bright V. McMurray, 377 Briggs V. Semmens, 206 Bristow V. Wood, 253 British Can. L. Co, v. Tear, 142 Brouard v. Dumaresgue, 372 Brower v. Can. Perm L. and S. Co., 72 Brown v. Livingstone, 126 '« V. McLean, 169, 222, 228 " V. Pears, 47 Brown v. Pringle, 130 " V. Robins, 202 " V. Woodhouse, 376 Browne v. Lockhart, 98, 99 Hruyere v. Knox, 84, 155 Bryant v. Busk, 36, 94, 122 Hryson v. O. and Q. R. Co., 3.S2 Buchanan v. Campbell, 89. 165 Buck, Re, Peck v. Buck, 139, 140 Bull V. Hutchens, 175, 242, 250, 252, 254 Burdon v. Kennedy, 160 Burnaby v. Eq. Rev. Society, 41 Burnell v. Brown, 25, 26 Burnett v. Lynch, 122, 123 Burnhani v. Daly, 351 Burns v. Canada Co., 129 Burroughs v. Oakley, 19, 20, 22, 25 Burritt v. Renihan, 215 Butler v. Butler, 337 Buttertield v. Heath, 253 C. P. R. Co. & National Club, Re, 299 Cahuac v. Cochrane, 279 Calcraft v. Roebuck, 26 Calvert v. Black, 181 Cameron v. Carter, 137, 138 Campbell v. Campbell, 100 v. R. C. Bank, 339 Canada Co. v. Douglas, 269, i: '9 Canada Perm. L. and S. Co. v . Mc- Kay, 69 " " V.Page, 107 Canavan v. Meek, 141, 142 Cann v. Knott, 163, 347 Cannock v. Jauncey, 99 Carey v. Toronto, 204 Carrick v. Smith, 222, 224 Carritt v. R. and P. Adv. Co., 31 Carroll v. Robertson, 377 Carter, £a; p., 292 Carter v. Grasett. 200, 221, 224 Casmore, In bonis, 311 Cato V. Thompson, 6, 7, 137 Cattell V. Corrall, 247, 255 Cauaton v. Macklew, 155, 266 Chamberlain, Re, 120 V. McDonald, 186 Chambers v. Waters, 376 TABLE OF CASES. xxi Chantler v. Ince, 138 Cliarles, lie, 101, 235 Charlton v. Craven, 243 Chattield v. Cunningham. 377 Chichester v. Done^^all, U!> " V. Lethbrid«e, 208 Chisholm & Oakville, lie, 204 Cholmondeley v. Clinton, 371, 374 Christie v. Ovington,21»l Church Society v. McQueen, 138, 140 Clark V. Bogart. 88, 139 " V. Harvey, 366 " V. Lan^ley, 47 Clarke v. Co>,'fte, 208 V. Faux, 21 V. Willott, JSG Clements v. Martin, 260 Clemow V. Booth, 144 Clonmert v. Whitaker, 243 Coaks v. Boswell, 341, 342 (yochrane v. Johnson, 87 Cockenour v. Bullock, 48 Coffin v. N. A. Land Co., 271 Colclough V. Sterum, 330, 342 Collard v. Sampson. 2oO Collier v. McBean, 2.')0, 251 CoUms V. Dempsey, 133 Colyer, In bonis, 313 Commercial Bank v. McConnell, 19, 20, 21 Compton V. Bagley, 45, 46 Converse v. Michie, 156 Cook V. Dawson, 251 " V. Belshaw, 217, 218, 219 Cooke V. Soltau, 124 " V. Crawford, 355 Cooley V. Smith, 69, 70, 90 Coombs, In bonis, 311 Cooper V. Denne, 241, 242 V. Emery, 29, 100. 2.S5 " V. Macdcnald, 192, 198, 314, 334, 337 Corbett v. Taylor, 148 Corby v. Gray, 142 Corderv. Morgan, 376 Core V. Ont. L. and D. Co., 6Sy Corrall v. Cattell, 8 Coulter & Smith, Re, 333, 335 Court v. Walsh, 263, 264 Cozier, He, Parker v. Glover, 143 Craig, Re, 217, 261 Craig V. Templeton, 179 Crawford v. Curragh, 306 Crocker v. Snowden, 326 Croft v. Oldfield, 171 Cronn v. Chamberlain, 158 Crooks v. Glenn, 22 Croskery, Re, 181 Crufe v. Nowell, 377 Cul))epper v. Aston, 173 Cur.iberland v. Kearns, 1.52 Gumming v. Alguire, 178 Cunningham lY: Frayling, Re, 291 Curling v. Shuttleworth, 243, 3.")8 Currier v. Friederick, 213 Cutler V. Simons, 21 Cutts V. Thodey, 46 D. Daby v. Gehl, 350 Daintree v. Fasulo, 313 Dalton V. Angus, 202 Dame V. Slater, 114, 260, 261 Darner v. Portarlington, 99 Dames & Wood, Re. 13, 16, 17, 18 Dance v. Goldingliam, 373 Darby v. Greenlees, 21,22, 23 Dare v. Tucker, 235, 237 Darlington v. Hamilton, 9 Davey v. Durrant, 370. 371, 372, 374 Davidson v. McKay, 66, 67 Davis, Re, I'll V. Henderson, 267, 271 " V. Sear, 207 " V. Strathmore, 154 Defoe, Re, 133, 279 Delaney v. C.P.R. Co., 265, 266 Denison v. Fuller, 20, 21 Deverell v. Lord Bolton, 24 Dexter v. Cosfoid, 175 Dicker v. Angerstein, 358 Dickey v. Heron, 339 Dickson v. Kearney, 125 Dilke v. Douglas. 221, 228 Dilkes, In bonis, 308 Dixon V. Astloy, 22 " V. Cross, 206, 207 " V, Gayfere, 266, 267 Docwra,/?e, 293 Dodd V. Burchell, 206 Dodsley v. Kinnersley, 240 Doe dem. Aikins v. Atkinson, 50 Anderson v. Todd, 'J8 " Armour v. McEwen, 3.52 " Auldjov. HoUister, 154, 155 " Ausman v, Minthorne, 262, 275, 278 Baldwin v. Stone. 268 " Beckett v. Nightingale, 271 XXll TAHLE OF CASES. Jjoi' (/(m.Bonlton v. FerKHKOii, !U!) " lircakoy v. Breakny, 1H2 " lireniitiii v. O'Neil, 155 " Buruliiiin v. HiinnioiiH, 155 " Cainuron v. HobiiiBon, J145 " Carter V. Barnard, 2(»»),'J()7 " Cronk v. Hinith, HI) " CrookHhank v. Huinber- atone, IIH " CuthbertHon v. McGilliH, 2t)5, '2(i(3, 2(58 " DiHsett V. McLeod, H51 Dunlui) V. McNab, 13H Ellis V. McGill, 50, HKi " Gardiner v. JuHon, iJSO " Goody V. Carter, '207 " Greenahielda v. Gurrow, 850 " Hafjerman v. Strong, 156, 84'.), 850 " HennesBv v. Myers, 50 Hull V. Greanbill, 101 " Jukea V. Huinner, 2(>4 " Kin},'Hton Baildin({ Society V. llaiiisford, iW, (17 «' Knij{ht V. Nepean, 128 " Maclem v. Turnbull, 125 " Major V. Reynolds, 51, 84, 8(5, 88 " Matlock V. Disher, 89 " McDonald v. Tvvifjt?, 325 " McDonnell v. Kattray, 206, 271 " McGregor v. Hawke, 183 " Mcintosh v.McDonell, 154, 155 •' McLean v. Manahan, 62, 63, 78, 107 •• McLean v. Whitesides, 133 " Pad wick v. Whitcomb, 117 " Perry v. Henderson, 262, 263, 276 " Prince v. Girty, 101, 122 •' Russell V. HodgkisB, 80 " Shibley v. Waldron, 50 Spafford v. Brown, 349, 352 Tiffany v. Miller, 349, 350, 361 " Wheeler v. McWilliams, 101. 132 Doliow, In boniH, 311 Dominion L. & 8. Society v.'Kitt- ridge, 53, 72, 81, 136 Donovan v. Bacon, 159 Doran v. Reid, 126, 326 Douglas V. Bradford, 360 " V. Hutchison, 346 Downos V. Orazebrook, 374 Drew V. Norbury, 171 Drewe v. HauHon, 26 Driver v. Tlionipnou, 314 Drutnmond v. 'i'racoy, 88 Dryndale v. Mace, 19 Dndilell v. Hinipson, 16, 17 Duke V. Harnett, 10 Dunham, /.V, 188, 184, 278, 279 Dunn V. Diuin, 810 Dynes v. Bales, 164 E. Kads V. Williams, 46 Eastern Counties R. W. Co. v. Mar- riage, 76 Eaton, li,', 248 Edwards v. McLeay, 140 Egleson v. Howe, 189, 140 Elliott T. Brown. 80, 318,320, 322, 880 " V. Edwards, 243 Ellis V. Dellabough, 374 *' V. Rogers, 5, 7 Else V. Else, 29, 47, 102 Emerv v. Grocock, 110. 124, 255, 256 Emrick v. Sullivan. 186, 326 Engel v. Fitch. 12, 15 English v. Murray, 6 Eno v. Eno, 254 Esdaile v. Stephenson, 141 Espley V. Wilkes, 203 Evans v. Watt, 132 Eynon, In bonis, 309 Eyton v. Dicken, 256 F. Fain v. Ayers. 236 Falkinerv. Equitable Rev, Socy., 12, 371, 372 Farrar v. Farrars Limited, 376 Farrell v. Cameron, 131 Faulds v. Harper. 168 Fawcett v. Burwell, 377 Ferguson, Re, 301 " v. Freeman, 117 " v. Whelan, 277 Ferrass v. McDonald, 88 Fielder v. Bannister, 207 ill TABLE or CASES. XXIU Finn v. Miller. 210 Fiiino^an v. Keontvn, 174 l''i«i!her v. Popliani, HIO riHlier V. Spolin, 157. 2'2'2 I'it/^ibbon v. DuKijan. laH I'liitt A Prescott, AV, ltl'2. '2\)2, 840 Flei'twood V. Greon. 20 Fli'iiry V. Prii)(»le. I HO Fiiidyer v. Cocker, 20 Forl)eB V. Adtinisoii. 114 " V. Peacock, 44 Fonl V. Grey, l'2i>. 12H '• V. Heely, 357 " & Hill, Re, 2S. 38 Fordyce v. Ford, 'Jti Forrer v. Nash, 200 Forrebt v. Laycock, 180 Forrester v. Campbell. 70, UO Forater v. Abraliani, 21'i, 254 V. Ho^'j^art, 3')7, 307 Forth V. Norfolk, 155. 100 Foster v. Beall, 88, 325 V. Crabb, 237 & Lister, lie, 253 •' V. Moore, 174 Fourth City v. Williaiug, 221, 223 Francis v. St. Germain, 2 Franklin v. Brownlow, 255 Fraser v. Naf»le. 72 Freed v. Orr, 349, 350 Freer v. Hesse, 265, 257 Freme v. Wright, 5, 8 Frend v. Buckley, 33 Frontenac L. & I. Co. v. Hysop, 143 Fuller, /n bonis, 311 Furness v. Mitchell, 187, 188, 189, 190, 192, 329, 330, 331 Fursden v. Clegg. 270 G. G., Re, 131 Gale V. Gale, 239, 241 Gamble v. Gummerson, 137. 138 " V. McKay, 74, 112 Games v. Bonner, 256, 260, 2G2 Gardiner v. Juson, 154, 155 Gardner v. Brown, 179, 182 Garner v. Hannyngton, 118 Garth v. Ward, 172 Gaskell v. Durdin, 171. 172 Gaviller v. Beaton, 351 Gayford v. Mofifat, 207 George v. Thomas. 132 Oibbona v . McDongall, 801 GitUal V. Hort, Xi\) Gilclirist A Island. Re, 354, 350 GileH V. Morrow, 129 Gilleland v. WadHWorth, 81, 82 Gillett V. Abbott, 122 UluBH V. RichardHon. 214, 247 Glenton & Kuunders. Re, 17 Ctloa«& Miller's Contract. Re, 6, 7 Godfrey v. Harrison, 1m9, 332 (iooderham v. Toronto, 205 Goodhue, Re, 111 Gordon v. Gordon, 178. 289 " V. Harnden, 24, 25 " V. McPhail, 117 Gore V Bowser, 162 Gracey & Tor. 11. E. Co., Re, 330 Graham v. ChalmeiH, 88. 175 V. Law, 170 " V. Williams. 212 Grant v. Can. Life. 301 Gray v. Coughlin, 81. 82. 86 " V. Iliohford, 134. 204, 279 Graydon & Hammill, Re, 151, 153 Great N. W. R. Co. A Sanderson, Re, 13, 15, 257, 344 Greaves v. Wilson, 13, 15, 16, 17 Greon & Artkin, Re, 350 " V. Ponton. 65, 73 Green's Settlement, Re, 128 Greenshiclds v. Bradford, 277 Grey v. Ball, 69, 87 " V. Coucher. 90 Griffin v. Patterson, 337, 346 Griffith V. Hatchard, 237 Griffiths V. Griffiths, 309 Grove v. Bastaid, 244, 247 Gunn V. Uoble, 339 Gunstan, In botiig, 310 H. Fadley v. London Bank of land, 174 Haggart v. Scott, 260 Hall V. Betty, 5 " V. Reward, 228 " V. Jarvis, 127 Hall Dare's Contract, Re, 340 Hallett V. Middleton, 236 Halsey v. Grant, 240 Ham V. Ham, 178 Hamber v. Roberts, 126 Hamilton v. Banting, 141 Scot- XXIV TABLE OF CASES. Hamilton v. Buchtuaster, 251, 232 •' V. Morrison, 20G Hampshire v. Bradley, 371, 870 Harding, Re, 114, 285 V. Wilson, 203 Hardman v. Child, 12, 13, 18 Harkin v. Kabidon, 104 Harman & Uxbrid«e, Jie, 31, 37 Harnett v. Baker, 11 Harris, Re, 129, 287 V. Mudie, 268, 271, 272, 274, 275 Harrison v. Armour, 68, 214 V. Brej^a, 65, 73, 78 " V. Coppard, '2i't{\ " V. Joseph, 148, 235 Harry v. Anderson, 149 Hartley v. Pehall,243 Harty v. Appleby, 87 Harwood, Re, 359 Haskill V. Fraser, 177 Hulton, In bonis, 309 Hawkins v. Obf>en. 292 " V. Ivuiuboottom, o~6 Hay, Re, 127 Haydon v. Bell, 21 V. Williams. 276 Haynes v. Gillen, 81 V. Smith, 146 Hayward v. Thacker, 125 Heath v. Pu^h, 264 Henderson v. Brown, 138, 139, 140 " V. Harris, 269 V. Spencer, 125, 126, 127, 343 Henrihan v. Gallajither, 34G Heppenstall v. Hose, 13, 14 Heward v. Wolfenden, 158, 159 He wish. Re, 126, 180. 340 Heyland v. Scott, 271, 274 Hiern v. Mill, 5 Higgins, Re, 92, 125 Higham v. Rid}^v/ay, 289 Hill V. E. d/ W. India Dock Co., "^OS Hill V. Greenwood. 183 Hillary v. Waller, 121, 256 Hilliker, Re, 315 Hillock V. Sutton, 277 Hobson V. Bell, 13, 45, 114, 373, 376 Hodaon & Howes, Re, 376 Hollywood V. Waters, 90 Holmes v. Goring, 206, 207 " V. Newlands, 263 Hooker v. Morrison, 277 Hoole V. Smith, 362 Hope V. Ferguson, 73 " V. Hope, 93, 194, 337 Hopkins v. Hopkins, 310 Home V. Wingfield, 35 Horsford, In bonis, 308 Horton & Hallett, Re, 355 Hosking v. Smith, 222, 223 Howard v. Harding, 374 " V. Eobinson, 99 Howarth v. Smith, 24(5 Hoy V. Smythies, 14 Huckvale, In bonis, 310 Hudson & Simpson, Re, 114 V. Temple, 12, 13, 18 Hughes, In bonis, 311, 312 V. C. & H. R. Co., 243 " V. Parker. 4 Hume V. Bentley, 10 Hume V. Pocock, 6. 8 Hunt V. Hunt, 311 Hunter v. Farr, 271 Hurd V. Billinton, 165, 167 Hyde v. Dallaway, 7, 13 " V. Warden. 20 Hynes v. Smith, 217 I. Ibbotson V. Rhodes, 145 Her V. Elliott, 305 Imperial Bank v. Metcalfe, 47, 48, 126, 133 Imperial L. and S. Co v. O'Sulli- van. 169 Incorporated Society v. Richards. 263, 264 Inglesant v. Inglesant, 310 Ingoldsby, Re, 184 Irish Civil Service Society & O'Keefe, Re, 376 Israel v. Leith. 86, 198, 214 J. Jackson v. Jessup, 28 Jackson & Oakshott, Re, 15 Jenkins v. Hiles, 19 v. Jones, 370 Jenner v. Finch, 307 Jervoise v. Northumberland, 2, 241, 244 Joice v. Duffy, 144 Jones v. Clifford, 8 TABLE OF CASES. XXV , 48, 5ulli- ards, y & Jones V. Cowden, 50, 51 '< V. Magrath, 336 " V. McMullfn, 107 " V. Montgomery, 242 Johnson, Ex. p., 229 " V. Bennett, 160 " V. Legard, 25(5 V. Reid, 72, 186 Johnston A Tustin, lie, 37, 41 Jnmpson v. Pitchers, 42 Jupp, Re, 337 Jason V. Gardiner, 171 K. Keefe v. Kirby, 206 Keen v. Codd, 301 Keenan, lie, liJl) Kelly V. Imp. L. and I. Co., 350, 377 Kennedy, li-;, 139, 149 V. Haddow, 218 Kent V. Kent, 134, 336 Kerr v. Styles, 159 Kershaw v. Kalow, 373 Ketchum v. Mighton, 266 Keyse v. Powell, 266 Kincaid v. Kincaid, 343 King V. Alford, ;il3 Kipp V. Synod, 267 Kirkwood v. Thompson, 376 Kitchen v. Murray, 49, 166 KnatchbuU v. Grueber, 6, 24, 26 Kraemer v. Gless, 186 241, L. Laird v. Paton, 41, 44, 49, 166 Lambert's Estate, Ee, 192, 196, 337 Lane v. Debenham, 355 Lang V. Kerr, 76 Lansdowne v. Lansdowne, 243 Laplante v. Seamen, 343 Latch V. Bright, 66, 67 " V. Furlong, 371, 372 Latouche v. Dunsany, 90 Lawlor v. Lawlor, 224 Lawrence v. Clements, 223 Lawrie v. Bathbun, 54 Lee V. Howes, 348 Leech v. Leech, 88 Leigbton v. Leigh ton, 100, 103 Leitch V. McLellan, 178 Leeming v. Smith, 141 Leng V. Hodges, 130 Lesturgeon v. Martin, 24 Lessee of Dublin v. Judge, 276 Leverington, In honi», 307 Lewes' Trusts, Re, 128 Lewin v. Guest, 41 Lewis V. Kelly, 269 •' & Thome, Re, 248 Ley V, Peter, 276 Lincoln •. Arcedeckne, 253 Lindsey v. Toronto, .V2 Little V. Aikman, 806, 310 Lloyd V. CoUett, 4") " V. Henderson, 266 " V. Jones. 339 Locking v. Halstead, 370 London v. Riggs, 207, 208, 209 Lord V. Stephens, 18 Loseev. Murray, 176 Loughead v. Stubbs, 175 Lovelace V. Harrington, 140 141 Low V. Morrison, 263 Lowes V. Lush, 255 Lundy v. Maloney, 345 Lupton V. Rankin, 206 Lynch v O'Hara, 101, 122 Lysaght v. Edwards, 292 M. Macdonald v. Crombie, 349 " V. Walker, 355, 356 Maclennan v. Gray, 86 Macklin v. Dowling, 34,43, 111 Macnabb, Re, 248, 252 Macnamara v. McLay, 52 Maddock, In honh, 309 Magrath v. Todd, 46 Major V. Ward, 127, 361, 364, 360 Makins v. Robinson, 217 Mandeville v. Nicholl, 316 Mallindine. Re, 297 Mann v. Ricketts, 305 March, Re,, 337 Margary V. Robinson, 312 Margravine of Anspach v. Noel. 21 Markwick v. Hardingham, 276 Marlow v. Smith, 241, 252 Marsh & Earl Grenville. Re, 8, 34 Martin v. Magee, 10, 44, 95, 296, 298, 300 xxvn TABLE OF CASES. i ■ I' Martindale v. Clarkson, 181 Martinson v. Clowes, 375 Marvin v. Hales, 101, 122 Mason v. Mason, 299, 363 Massey v. Sladen, SCO, 369 Mathers v. Helliwell, 143 Matthie v. Edwards, 369, 372 Mawson v. Fletcher, 13, 14 Mellersh v. Keen, 364 Menzies v. Lightfot-; , i46 IMercer, In bonis, 309 Metcalfe v. Pulvertoft, 171, 172 Metters v. Brown, 361 Meyers v. Doyle, 274 •' V. Meyers, 349 Midland R. Co. v. Miles, 207 Milford Haven B. Co. v. Mowatt, 257. 344 Millar v. Smith, 52, 53, 62, 82, 83 Miller v. Brown, 69 V. Cook, 360 " V. Hamelin, 275 V. McGill, 89 " V. Stitt. 351 V. Wiley, 345 Mills V. Enight, 131 Mitchell V. Greenwood, 352 V. Mitchell, 342 " V. Weir, 315 Mitcheltree v. Irwin, 20, 22, 25 Moffatt v. Bank U. C, 145 " V. Thompson, 180 Monckton & Gilzean, Re, 17 Monk v. Farlinger, 125, 127 Monro v. Taylor, 8 Moore v. Bank B. N. A., 90 " v, Clarke, 162 " V. Hynes, 150 •' V. Jackson, 191, 328 " V. Macnamara, 173 '• V. Shelley, 360, 369 Morgan v. Morgan, 198 V. Swansea. 291, 292 Morley v. Cook, 13, 17 Morris v. Kearsley, 35 Morritt v. Douglas, 310 Morse, Re, 126, 343 Mortlock V. BuUer, 14 Morton & St. Thomas, Re, 203, 204 Mostyn v. Mostyn. 340 Moulton V. Edmonds. 29,33,100,122 MulhoUand v. Conklin, 271 Mulligan v. Thompson, 132 Mailings v. Trinder, 245, ?t9, 250, 251 Manro v. Smart. 315 Munsie v. Lindsay, 310 Murray Canal, Re, 176, 184, 316 Music Hall Block. Re, 178, 181, 220 Myers v. Oatterson, 201 Myles v. Noble, 166 Mo. McArthur v. Eagleson, 125 McCabe v. Thompson, 158 McConaghy v. Denmark, 267, 271 McCrum v. Crawford, 83, 90 McCutfiheon & Toronto, Re, 150 McDermott v. Workman, 138 McDonald v. Cameron, 349 " v. Forbes, 129 " V. Garrett, 21, 25 " V. McDonald, 69 " V. McDonnell, 158 " V. Mcintosh, 263 " V. McKinty, 266 " V. McMillan, 177 " V. McMurray, 21 MoDonell v. McDonell, 349 McDonnell v. McDonnell, 350 McGee v. Kane. 349 McGregor v. Keiller, 274 McGregor v. Bobertson, 164 Mcintosh v. Rogers. 8, 9, 93, 94, 95, 100, 133 Mclntyre v. Canada Co., 276 McKenny v. Arner, 88 McKilligan v. Machar, 127 McEinnon v. McDonald, 274 McLean v. Fisher, 161 McLellan v. McDonald, 88 McLennan v. McLean, 137, 220 MoLeod V. Truax, 316 McManus v. Little, 41, 47, 48 McMaster v. Anderson, 145 " V. Phipps, 68, 70, 214 McMichael v. Wilkie, 143 McMillan, lie, 363 '* V. McMillan, 169 McMurray v. Spicer, 6 McNamara v. McLay, 75 " V. Eirkland, 217 McPhadden v. Bacon, 231 McVean v. Tiffin, 217 N. Nash V. Eads, 374 " V. Wooderhouse, 11 Nason Neeaon Neill V. Nelthor Nolan, Norfolk Norris Norton TABLE OF CASES xxvn Nason v. Armstrong, 20, 47 Neeaon v. Eastwood, 50 Neill V. Carroll, 215 Nelthorpe v. Holjjate, 13 " V. Pennyman. 374 Netherseal Coll. Co. v. Bourne, 303 Nicholsou V. Burkholder, 12G V. Page, 114, 127 Nolan, Re, 327 Norfolk's Case, Duke of, 243 Norris v. Meadows, 145 Norton v. Smith, 17G O. Oakden v. Pike, 45 O'Connor v. Beatty, 20, 26 V. Kennedy, 132, 133 O'Donohue, Ite, 1(51 V. VVhitty, 365, 367 Ogden V. McArthur, 186, 325 Ogilvie V. Foljanibe, 5, 26 O'Keefe v. Taylor, li), 20, 22 Ontario Ind. L. and S. Co. v. Lind- sey, 65, 165 Ontario L. and S. Co. & Powers, Re, 315 Ord V. Noel, 371 Orser v, Vernou, 125 Osborne v. Harvey, 21 V. Kerr, 349 V. Rowlett, 242, 253, 254, 355 P. Packer v. Walsted, 207 Page V. Adam, 15, 18, 44 Painter v. Newby, 14 Paisley v. Wills. 260 Palmer v. Loeke, 252 Parke v. Riley, 160, 162, 346 Parker v. Tootal, 241 Parkinson v. Hanbnrv, 354, 357, 364, 367, 376, 377 Parr v. Lovegrove, 32, 44 Patch V. Ward, 99 Patterson v. Robb, 23 '• V. Tanner, 144, 376 " V, Todii, 348 Pearn, In bonis, 311, 313 Pearse, Jn bonis, 309 Pearson v. Pearson, 313 Pease v. Jpckson, 221, 223 Pegg V. Wisden, 22 Pelham v. Gregory, 242 People's L. and D. Co. v. Bacon, 23, 148 Perry v. Perry, 369 Peterkin v. McFarlane, 09, 79, 90 Phene's Trusts, Be, 128 Pheyaey v. Vicary, 206, 207 Phillips V. Caldcleugh, 141 " V. Evans, 99 Phipps V. Hall, 308 " V. Moore, 176 PilJing's Trusts, Ec, 119, 297 Pincke v. Curteis, 46 Pinnington v. Galland, 208 Plomley v. ShepJierd, 297 Pomfret v. Ricroft, 208, 209 Ponton & Swanston, Re, 121, 123 Pope, Re, 161 Potts v. Meyers, 176 I'ratt v. Bunnell, 181, 182 Prebble v. Boghurst, 242 Preston v. Tubbin, 174 Price v. Maoaulay, 15 *' v. Price, 170, 171 " V, Strange, 247 Pride v. Bubb, 314 Prince v. McLean, 112, 113, 122 Pringle v. Allan, 265 Prittie & Crawford, Re, 162, 346 Prosser v. Rice, 223 " V. Watts, ;«, 256 Puddephatt, In bonis, .311 Pulker v. Evans, 178 Pyrke v. Waddingham, 2, 242,244,247, 249 R. Radford v. Willis, 252, 253 Rae V. Geddes, 22 Ramus v. Dow, 301 Rathbun v. Culbertson, 158 Reddani Re, 184, 297, 299, 363 Reed v. Banks, 74, 113 Rees V, Rees, 309 Regina v. Barnes, 29 " V. Currie, 76 " V. Dickout, 286 " V. Fee, 127 " V. Guthrie, 93, 121 " V. McCormick, 29 '• V. Monk, 114 Registrar of Carleton, Re, 73, 74 Reid V. Miller, 289 " V. Reid, 335 " V. Whitehead, 51, 54 Reinhart v. Shutt, 217 Richards, In bonis, 314 " V. Chamberlain, 217 Richardson v. Armitage, 89 Richmond v. Evans, 372 xxviii TABLE OF CASES. iiji: Ricker v. Ricker, 342 Ridout V. Howlaiid, 355 RdHtcHjk School IJoard, 213 Roberts v. Berrv, 45 " V. Karf, 20 1, 208 Robevthon, Be, 180, 343 *' V. Daloy, 275 •' V. Lockie, 304 " V. Norris, 3(j'.»,370, 374 Robinson v. Harris, 42 " V. Trevor, 222, 223 Robson V. Waddell, 54, 02 Roche V. Ryan, 204, 205 Roe V. Braden, 87 " V. McNeilly, 123 Rogers v. Shorti.ss, 125, 12 J " V. Wilson, 22!) Rolt V. Hopkinson, 14() Romilly v. .Fames, 243 Rose V. Calland, 247, 250 " V. Peterkin, (>!>, 70, 00 Ross V. Harvey, 1(54, 105 " V. Malone, 340 •' V. McLay, 75 Rossin V. Walker, 203 Rfiyal Can. Bank v. Mitchell, ISO Rnmohr v. Marx, 340 Rnsliton v. Craven, 243 Russell v. Russell, 1.50 " V. Watts, 200 Ruttan V. Levisconte, 150 " V. Smith, 270, 278 Rvan V. Devereux, 30o " V. Miller, 1.32 Samis v. Ireland, 158, 1.50 Sanders v. A[alsburg, 336 " V. Sanders, 203 Sanderson v. Burdette, 83 Sangster v. Cochrane, 223 Savory v. Underwood, 42 Saylor v. Cooi)er, 20(5 Scammell v. Wilkinson, 314 School Trustees v. Neill, 127 Scott V. McLeod, ,50 " V. Nixon, 114, 250, 259, 200, 201, 202. 204 Scott, 307 Supple, 299 Wye, 191, 335 Scottish Am. Inv. Co. v. Tennant, 72 Selwyn v. Garfit, 357, 307, 3G9 Seton V. Slade, 45, 46 Severn v. McLellan, 88 Sewell V. Evans, 126 Shapland v. Smith, 241 V. V. V. .Sharman, In boMi's, 310 Sharp V. Adcock, 242 Shaw V, Bunny, 375 '• V. Ledyard, 104, IOC " V. Shaw, 238 " V. Tims, 1.58 Sheffield v. Mvdgrave, 242 Shepherd v. Keatly, <>, 10 Shepherdson v. McCullough, 208, 271, 272 Sheppard v. Doolan, 6, 25i " V. Kennedy, 173 Sherbonneau v. Jetfs, 87, 90 Shirley v. Watts, 1.55, 100 Sliore V. Collett, 235 Shrewsbury R. Co. v. Stone Valley R Co., 243 Sidebotham v. Barrington, 43 Silverthorne v. Lowe, 149 Simnums v. Shipman, 2(57 Simpson v. Disniore, 126 V. Sadd, 20. 23 v. Smyth,15<», 161 Skipwith V. Shirley, 123 Skhtzsky v. Cranston, 203, 204 Slater v. Fisken, 343 Sloi)er V. Fish, 239, 241 Smart v. Sanders, 108 *' v. Sorenson, 181 Smith, In bonis, 310 " V. Bonnisteel, 88 " V. Brown, 308 " V. Death, 255 " V. Lloyd, 206 " V. Redford, 127 " -lobinson, 40 " V. Smith, 72, 179, 310, 314 " V. Spearn, 370 " V. Watts, 18 Snarr v. Granite Rink Co., 202 Soden v. Stevens, 83 Solomon & Meagher, Ec, 370 Solder v. Arnold, 47 Southby v. Hutt, 94 Southcomb v. Bishop of Exeter, 20 Spencer v. Topham, 254 Spratt v. Jeffrey, 10 Squire v. Oliver, 1.50 Stackpoole v. Stackpoole, 206 Stammers v. O'Donohoe, 138, 141 Stansfield v. Hobson, 203 Staple v. Heydon, 208 Stapylton v. Scott, 241 Stark v.Shepheid, 146 Starr-Bowkett Bdg. Soc'y, Itc, 13, 16, 17 Steer v. Crowley, 41 Steers V. Shaw,' 274 Stephen v. Simpson, 316 Stevens v. Guppy, 22, 115, 2S4 Stevenson v. Hodder, 141 Stewart v. Alliaton, 24 TABLE OF CASES. XXIX Stewart v. Hunter, 140 " V. Rowaom, 365, 370 Stoddart v. Stoddart, 54 Streatley, /« boniH, 308 Street v. Commercial liank, 50, 51, 71 Stroyen v. Knowles, 202 SturKis, Jie, 310 Surman v. Wharton, 1!)5, 190 Swinford, In boni.i, 313 Symons v. James, 8 T. Tanner v. Smith, 10, 17 Taylwr v. Meads, 314 " V. Martindale, 8 Teevan v. Smith, KW Tenute v. Walsh, 297 Terry & White, Kc, 12, 13 Thackwray & Younp, Me, 242, 252, 254 Thomas v. iJering, 14 V. Powell, 13!) Thompson v. Brunskill, 138 " & Curzon, Mc, 47, 335 V. Mills, 107 " V. J ailiken, 33 *' V. Winger, 2(>1 *' V. Thompson, 184 Thornley v. Thornley, 338 Thiirlow V, Mackeson, 370, 374 Tichborne v. Weir, 265 Tillie V. Springer, 2!)7 Titley v. Wolstenholme, 355 Tomlinson v. Hill, 183 Tommey v. White, 3G7 Torrance v. Bolton, 136, 141 Townsend v. Champerdown, 42 V. Wilson, 355 Tracey v. Lawrence, 364 Tripp V. Griffin, 130 Truesdell v. Cook, 166 Trust and L. Co. v. Gallagher, 169, 220 V. Shaw, 53, 81, 82, 83,135 Trusts Corporation & Medland, iJe, 162 Tally V. Bradbury, 138, 139, 140 Turley v. Williamson, 262 TurnbuU v. Forman, 191, 335 " V. Merriam, 207 Turpin v. Chambers, 15, 17 Tuthill V. Rogers, 260 Twyoross v. Grant, 303 Tyler v. Merchant Taylors' Co., 312 V. Union Bank v. Ne/ille, 87 Upnerton v. Nichobon, 45, 46 Urmston v. Pate, 139 V. Vance v, Cummings, 82 Vancouver v. Bliss, 22, 241 VanNorman v. Beaupre, 175 V. McCarthy, 158, l.W VanVelsor v. Hughson, lOl, 111, 121 Van Wagner v. Findlay, 108, 352 Venn v. Cattel, 4(> Vernon, Exp., 292 W. Waddell v. Wolfe, 9 Wagner v. Jefferson, 210 Walker v. Dickson, 143 V. Powers, 183, 352 " V. Sniallwood, 172 Wall V. Bright, 292 Wallbridge v. .Tones, 126 Want V. Stallibrass, 19, 47 Wanty v. Robins, 217 Warburtcm v. Lowland, 84 Ward V. Archer, 346 Warde v. Dickson, 47 Warden V. Trenouth, 138 Warner v. Jacob, 371, 374 Warren v. Richardson, 20, 47 Waters v. Shade, 50, 83, 84, 87, 138, 155, 234 Watkinsv. McKellar, 375 Watson V. Dowser, 1(>8 " V. 'tarston, 359 " V. Mid-Wales R. Co., 140 Weaver v. Burgess, 185 Webb V. Kirby. 19 " V. Symington, 118 Webster & Registrar of Brant, Be, 74 Weir V. Niagara Grape Co., 86, 167 Weld V. Scott, 271 Wells V. Northern R. Co., 103 West of England Bank v . NicoUs, 99 Westbrook's Trusts, Ee, 128 Western v. Russell, 14 Wheeldon v. Burrows, 200, 208 Whitcombev. Minchin, 374 White V. Lisle, 242 " V. Neaylon, 90 •' V. White, 173 Wl.itehead v. Whitehead, 336 Whitehouse v. Root, 139 Wickham v. Howden, 208 Wigle V. Setterington, 68, 90 Wilde V. Fort, 243 XXX TAHLE OF CASES, Wilkinson v. Chapman, 242 Wilcock V. Nobh', 314 Williams, In bonin, 311 Jte, 2!t7 V. Cruddock, VC> V. Edwards, 12, 17 V. McDonald, 27H Wilmot V. Wilkinson, 10 WilHon, In bonis, 308 " V. (Jilmor, 208 " & Houston, Re, 1.30, 148 (< M 7 Yost V. Adams, 314 Young V. Elliott, 208 V. Roberts, 358 PART I. INVESTIGATION AND PROOF OF TITLE. TI 11 il.l! Col jjosside wherel feoffme right t< of the are son properl the ow: fectly g descent (a)C Til TITLES TO REAL ESTATE IN FEE SIMPLE. PART I. INVESTIGATION AND PROOF OF TITLE. CHAPTER I. OF THE DIFFERENT KINDS OF TITLE. 1. Title defined. 2. Marketable title. 3. Safeholding title. 4. Doubtful title. 1. Title defined. Coke defines Title as follows : — " Titulus est justa causa possidendi quod nostrum est, and signifieth the meanes whereby a man commeth to land, as his title is by fine or- feoffment, etc.," (a). The title to land is the vendor's right to it, and must not be confounded with the evidence of the title. Colloquially, the deeds and other documents are sometimes spoken of as the title; but they are more properly speaking the evidence of the title, i.e., they show the ownership to be in the vendor. A title may be per- fectly good without deeds at all, as in the case of a title by descent, or a title by possession, both of which depend for (a) Co. Litt. 345. TITLES — 1 2 O.^ THE DIFFERENT KINDS OF TITLE. their proof upon evidence to be collected and put in the form of certificaten or declarations. Il 2. MarketaJde title. As a matter of fact every title is either ^jood or bad, that is to say, the ostensible owner, or the person claiminff to be the owner either is, or is not, entitled to the fee. And as between persons contending for the land this is generally true, the court being bound to express an opinion on the title. But, as between vendor and purchaser, titles, as a matter of law, do not fall into the classification of good and bad. The parties are not contending for the property on differ- ent evidences of their claims, as to the respective merits of which the court is bound to pronounce. The matter to be adjudicated upon is whether the title of the vendor is so clear that the court can with confidence force the pur- chaser to take it; or whether, without declaring it to be bad, there is such a doubt about it that the purchaser will not be compelled to accept it (b). That title which, so far as its antecedents are concerned, may at all times and under all circumstances be forced upon an unwilling pur- chaser, is called a marketable title (e) ; and this, and not a doubtful, or even a safeholding title, a purchaser may require (d). 3. Safeholding title. A safeholding title is one which may be perfectly good, the owner being in no way liable to be disturbed in his possession and full enjoyment of the land ; yet he may be unable to adduce the proper proofs of the sufficiency of his title (e). (6) Jervoiie v. Duke of Northumberland, 1 Jao. & W. 568. (c) Pyrke v. Waddingham, 10 Ha. at p. 8. (d) Francis v. St. Germain, 6 Gr. 636 ; Dart. V. & P., 6th ed. p. 105. (e) Leith'B Wms. on Real Prop. 309. ^1 DOUBTFUL TITLE. 8 4. Douhtful title. A doubtful title is hardly the subject of definition. It may very properly be called an unmarketable title in con- tra-distinction to a marketable one. The doctrine arose out of the practice of the Court of Chancery in cases of specific performance; and from the inability of the Court in any case to form a clear opinion upon the title, the pur- chaser was not bound to accept it. The subject will be more fully considered in a subsecjuent chapter. OF THE PUUCHASER'S RIGHT TO A (SOOD TITLE. CHAPTER II. OF THE purchaser's RIGHT TO A (JOOD TITLE, AND HOW IT MAY HE WAIVED. 1. Open contract: extent of interest; absolute right to good title. 2. Waiver. (i) Bg matter before or contemporaneous with the contract. (ii) By the contract itself (a) Limited inquiry. (b) No inquiry. (c) Rescission by vendor on objections by purchaser. (iii) By matter subsequent to the contract. (a) Taking possession; securing purchase money. (b) Re-sale. (c) Favourable opinion of counsel. (d) Preparation of conveyance. (e) Particular objection. 1. Open contract; extent of interest; absolute right to good title. An agreement to sell land, without limiting or defining what interest is sold, imports a sale of the whole of the vendor's interest or estate (/), and, in the absence of any explanation, imports also a sale of an estate in fee simple in the land {g) ; and a vendor offering an estate for sale, (f) Bower v. Cooper, 2 Ha. 408. {(/) Hughet v, Parker, 8 M. & W. 244 ; Worthingtonv. Warrington, 5 0. B. at p. 644. OPEN CONTRACT ; EXTENT OF INTEREST, ETC. 6 without qualification, aaaerts in fact that it is his to sell, and consequently that he has a ffood title (A), and under- takes, in the absence of express stipulation, to make over to the purchaser the complete and absolute dominion of the soil, saving, of course, the ultimate rij^hts of the Crown. And, inasmuch as land is not the subject of actual manual delivery, as are personal chattels, the vendor is bound to produce such evidence of ownership as will satisfy the purchaser that he has the ri^dit to transfer to hiiM ii I the legal and equitable interest in the land. In Hiern v. Mill (i) Lord Erskine said that " land is held not by possession, but by title ; not so as to personal chattels; for the common traffic of the world could not go on. Therefore a sale in market overt changes the property of a chattel ; and that rule, that possession is the criterion of title to a chattel has been adopted in the Bankrupt Acts: so that, if the owner has permitted the bankrupt to be the visible proprietor the property is divested; .''or no one can distin- guish the property except by the posKession. But that is not so as to land ; for no person in his senses would take an offer of a purchase from a man, merely because he stood upon the ground. It is not even prima facie evidence. He may be tenant by sufferance, or a trespasser. A purchaser must look to his title ; and if, being asked for his deeds, he acknowledges he has not got them, the pur- chaser is bound to further inquiry." The purchaser's right to a good title does not arise out of any specific term of the agreement itself, but is a right given by law (j). Therefore, where there is an open con- {h) Freine v. Wright, i Madd. 365 ; Brewer v. Broadwood, 22 Ch. D. at p. 107. (i) 13 Ves. 122. (;■) Ogilvie v. Foljambe, 3 Mer. 53 ; Hall v. Betty, 4 M. & Gr. 410. In Kllit V. Rogers, 29 Ch. D. at pp. 670. 671. the qaestion is mooted whether the right to a good title depends upon an imphed terra of the contract, or is a collateral right given by law. See the authorities there cited. 6 OF THE PUUCHASEUS RIGHT TO A GOOD TITLE. tract, J. €., a mere a^i*eement by the vendor to soil, and by the purchaser to buy, the land, with no conditions, it is the purchaser's right to have a good title made out for him by the vendor. And it is also his right to insist that the t|uestion whether the vendor has, or lias not, a good title shall be sifted to the bottom before he can be called upon to accept an indenuiity, or compensation for a defect, or to let the vendor oft' his contract (/.'). But where a pureluiser had, since the purchase, by his own act acqun-ed the means of curing a defect, in the title, the Court refused to dismiss the vendor's bill for specific performance (I). 2. Waiver. The purcluvser's right to a clear title may be rebutted (i) by matter befi>re or contemporaneous with the contract ; (ii) by the contract itself: (\\\) by matter subsequenv to the contract, (i) Bii matter he/ore or coiitemporaneoui!i with the coiihad, " Where the contract is silent as to the title which is to be shown by the vendor, and the purchaser's r'ght to a good title is merely implied by law, that legal implication may be rebutted by showing that the purchaser had notice before the contract that the vendor could not give a good title. If the vendor before the o.ceeution of the contract said to the purchaser, I cannot Viiake out a perfect title to the property, that notice would repel the purchaser's right to re(|uire a good title to be shown" {m). ^lere knowledge of a defect is not suthcient to deprive the purchaser of hia right : for he mn\- buy knowing, as Sir George Jeivsel, M.R., said in Cato v. Thoiuption {ii), " that the property is incum- bered up to the hilt, but he does not take a conveyance subject to the incumbrances." (A) KiKitchhuU V. Gruther, 3 Mcr. 1B7. (/) II unit' V. Pocock, 1 Eq. 6(V2 ; Sheppard v. Doolan, 3 Dr. A War. 1. (in) In rr rt/o.;./ iC- Miller's Contract, 23 Ch. D. 327. And see Engliih V. Murray, 40 L. T. N. S. 35 ; McMitrray v. Spictr, 5 Eq. at p. 541. (n) 9 g. B. D. at p. 620. i ! WAIVER HY THE CONTRACT ITSELF. 7 " It is nocossary," said Cotton, L. J., in Kills y, Rtnjers {()), " in onler to brini:^ n onse ^Yithin the exception, that there shonUl be knowledge on the part of the purchaser that he cannot orot a jjood title." 80, where the purchaser in that case knew of restrictive covenants, but supposed that they had been done away with by compulsory taking on the part of a railway ccMupany, it Wiis lield that he had not waived his right to object. " But, if the contract expressly provides that a good title sliall Ih> shown, then, inasnnich as a notice by the vendor that he could not show a good title would be inconsistent with the contract, such a notice would be unavailing, and whatever notice of a defect in the title might have been given to the purchast v, he would still be entitled to insist on a good title '" {p). Ami in such a case parol evidence to show the knowledge of the purchaser is inadmissible, for it would tend to explain or modify the contract ; tlu)ugh it wouUl be ailmissible for the pui'pose of reformation (; the liability of the vendor in this respect, being in deroga- tion of the purchasers right, will be strictly construeil. " If a venilor means to exclude a purchaser from that which is a matter of connnon right, he is bound to express (0) 29 Ch. D. Rt p. 1)71. (/>) In re G/oij;; (f- Miller' * Contract, 23 Ch. D. 327. ((/) Catov. Thowpson, '.» Q. B. D. (ild. (r) Hyde v. Dallnway, 6 Jur. U'J. 8 OF THE PUUCHASEllS lUGHT TO A GOOD TITLE. himself in terms the most clear and unanibijruous, and if there be any chance of reasonable doubt, or reasonable misapprehension of his meaning, I think that the construc- tion must be that which is rather favourable to the purchaser than to tlie vendor " («). The rij3fht to demand a clear title is sometimes limited by a condition that the purchaser siiall take such title as the vendor has (0, or some particular title ilescribed in tne condition ; or in some other way the purchaser's right to inquiry is limited (u) ; and such stipulations are valid and will, in general, bind the purchaser (v). But they are con- strued strictly in his favour, and he must be clearly snown to have deprived himself l)y contract of his right ; other- wise such condition.'^ vill be impotent {w). (a) Limited inquiry. The cases in which the purchaser's right may be abridged have been divided into two classes : — "First, cases in which the terms of the contract preclude the purchaser from making requisitions upon tlie vendor as to his title ; and secondly, cases in which they preclude him, not only from making inquiries from the vendor as to his title but from making any investigation anywhere about the title " {x). In cases falling within the first class, though t! e purchaser cannot make requisitions ii-on tlie vendor, he is at liberty to show aliunde that the \r ;;' )r cannot make a good title. Hence, in Jones v. Cliford, w U -e the condition was that the purchaser "should not require the production of, or (<) i'er Sir J. I.. Knight Bmce, V.(3., in Symoiis v. Janifx, I Y. & C C. C. 490. And see lie Ahii\ili cC Karl GmnvUle, 24 Cli. D. 11. (t) Hume V. Pococh, 1 Eq. 423 ; 1 Ch. App. 379. (u) Muuro V. Tatj\or, 8 Ha. 51, 71 ; Corrall v. Cattell, 4 M. * W. 734 ; Taylor t. Martiudale, 1 Y. A C. C. C. G')8. (r) Freme v. Wright, 4 Madd. 36.5. (w) Mcintosh V. Rogers, 14 Ont. R. at p. 99. (x) Jones V. CUffnnl, 3 Ch. D. 790. See also per Baggallay, L.J., in Best V. Hamand, 12 Ch. D. at p. 10. LIMITED INQUIRY. investigate, or make any objection in respect of tlio prior title"— a point of commencement havinfr lieen fixed by the contract — the purchaser was not precluded fn^n showing that the vendor had no title to the fee, which was in fact in the purchaser subject to a lease to the vendor (//). So, where the parties agreed that the vendor (a lessee) should " not be obliged to produce the lessor's title," it was held that, though the vendor was relieved from showing the title of his lessor, the purchaser was not prevented from taking objections which he had discovered himself (z). And where the vendor represented the property to be sold as " freehold," it \\ is held that the purchaser was not bound to take an incumbered freehold title, notwithstanding a condition that he should not investigate or take any objec- tion to the title (a). So, in Wmhldl v. Wolfe (h), where the condition was, "it shall form no objection to the title that such indenture [the commencement of the title] is an under- lease ; and no requisition or incjuiry Mhall be made respect- ing the title of the lessor or his superior landlord, or his right to grant such underlease," it was held that "iiKjuiry" was usvhI as a convertible term with " requisition," and that the purchaser was not precluded by the condition from show- ing without inquiry of the vendor that he could not make out a good title. In Mclnfonh v. Ro(jcrs (c), the contract contained the following very common condition : " No title deeds, abstracts, or evidence of title to be re(]uired other than those in vendor's possession, nor shall the vendor ])e required to give a covenant for the production of the same." In an action for specific performance by the vendor, it was held, 1. that information desired by the purchaser outside of the limit prescribed by tbj\ condition must be sought for (y) See also Darlimjton v. Hamilton, Kay, 550. («) Shepherd v. Kuithj, 1 Cr. M. & R. 117. (rt) PhilUpg V. CaliideiKjh, L. R. 4 Q. B. 159. (h) L. R. 9 Q. B. 515. (c) 14 Ont. R. 97. 10 OF THE PURCHASERS RIGHT TO A GOOD TITLE. at the purchaser's expense ; 2. that if the evidence in the vendor's possession, and probably that disclosed by the registry, did not prove a good title, the purchaser was not bound to complete ; 3. but in such a case the vendor might not be liable for damages, because by the condition he had relieved himself from the absolute obligation of making out a good title. If, however, the vendor was anxious to com- plete, he might volunteer, though he could not be compelled, to go beyond the letter of his contract and supply what was required (d). Judgment was accordingly granted for spe- cific performance at the instance of the vendor, plaintiff, with a reference as to title. (b) No inquiry. But in cases falling within the second class the purchaser is absolutely precluded from inquiry. So, where an agree- ment by a lessee to sell two leases " as he holds the same," bound the purchaser to accept a proper assignment without requiring the lessor's title, it was held that he was not at liberty to object to the lessor's title (e). And where the purchaser of a term agreed that " the lessor's title will not be shown, and shall not be inquired into," it was held that inquiry was precluded for every purpose, and he was debarred from showing by Acts of Parliament that the lessors had no power to grant leases (/). So, by an agree- ment that the purchaser is to take such title as the vendor has received (g), or to take his title without dispute {h), the purchaser is precluded from raising any objection to the title. And where a purchaser agreed to "assume and (d) See also per Maclennan, J. A., Martin v. Magee, 18 App. R. at p. 396. (e) Spratt v. Jeffrey, 10 B. & C. 249. This case seems to conflict with Shepherd v. Keatlif, supra, which is said by Sir Edward Fry (Fry Sp. Perf. 3rd Ed. sec. 1331, n. 4) to overrule it ; but in Duke v. Harnett, 2 Coll. 337, the cases are said to be reconcilable. (/) Hume V. Bentley, 5 DeG. & Sm. f20. (g) n'ilmot V. Wilkumm, 6 B. & C. 506. (k) Duke V. Bainett, 2 Coll. 337. NO INQUIRY. 11 admit " that everything was done by a railway company to enable them to sell the land as surplus land, and he discov- ered that the prior owners had a right of pre-emption which they had not waived, and on that account objected to the title, it was held that he could not recover his deposit on his refusal to admit the vendor's position as he had agreed (i). But if there be any representation on the part of the vendor as to his title upon which the purchaser is to rely, and the representation proves to be untrue, such a condition will not bind the purchaser, and he may even after con- veyance rescind the whole contract. So it was held in iV(f.s7i V. Wooderhouse (j), where it was said, "If the vendor said, I am owner in fee of the property, and then added a condition, ' the purchaser shall accept my title, and shall not go behind the conveyance from me to him, or ask any questions, or make any requisitions whatever,' it appears to me that he would be precluded from making those objec- tions if that statement was true ; but that if the statement which accompanied the condition w^as in itself an untrue statement, then he would not be bound by the condition at all, and would have a right to say, ' Although taking you at your word, taking your statement of title, I may not ask questions, yet if it turns out that that statement upon the faith of which I was content not to ask questions, is an untrue and an incorrect statement, I am not bound any longer by the condition not to ask questions.' " And in Harnett v. Baker {k), where the condition declared that the purchaser should assume a certain state of facts, and it turned out that the facts were erroneously stated, the court refused to hold the purchaser bound by the condition, and on the vendor's refusal to accept an open investigation of title, dismissed his bill. (i) Best V. Hamand, 12 Ch. D. 1. (j) 52 L. T. N. S. 49. {k) 20 Eq. 50. 12 OF THE PrUCHASEU's UKJIIT lO A fJ(X)l> TIT!.E. (c) Rescission hy vondnr on objections by iiurchaser. It is fre(iuently made a cmiditioM of the agreement, that if the purchaser shall make or insist on any objection to the title which tiie vendor shall be unable or unwilling to remove, he shall be at liljerty to rescind the contract and return the deposit without interest, coats, or further com- pensation. Various forms of the condition, differing but little in effect, will be found in the reports of the cases cited below. In practice the condition is sometimes by its wording extended to conveyance, (juantity and quality of estate, evidence of title, etc. Thus, where a condition pro- vided that the purchaser should, within a limited time, send in his objections and retpiisitions in respect of title and all matters appearing on the abstract or the particulars and conditions of sale, and the purchaser demanded com- pensation for a deticiency in the (juantity, it vas hehl that the vendor might rescind, there being also a condition against claiming compensation (/). But in one case {ni) Pearson, J., gave it as his opinion that it is not a proper condition to be inserted with respect to the conveyance. This stipulation as regards title, though not unreason- able, illegal, or improper (»), is for the sole benefit of the vendor, and is introduced for the purpose of procecting him against difficulties as to title (o), or to meet the case of a purchaser insisting upon objections which the vendor is unable to remove either absolutely or without incurring an unreasonable amount of expense (^>). Ic is, in a sense, a •depreciatory condition, but being one which a prudent owner would employ, it may be used on a sale by a mortgagee and will bind the mortgagor {q). It is construed strictly in (l\ Ite Terry rf Ifhite, 32 Ch. D. 14. (m) Iltirdman v. Cliild, 28 Ch. D. at p. 718. (fi) U'illUnns v. KdiViirda, 2 Sim. 83 ; Hiidion v. Temple, 29 Beav. 543. (o) Eiifjel V. Fitrh, L. R. 3 Q. B. 314. (p) Hardinan v. Child, 28 Ch. D. 712. (q) Falkiner v. Equitable liev. Socy., 4 Drew. 352. HKSClSSiiON BY VENDOR. la favour of tlic piirchaHer (r). An), unless indeed the objection to title is involved with that of compensation, as where the title to a portion of the property fails; thus, in a cast; where a vendor aj^reed to sell five acres, and the abstract showed a title to three and a half oi.ly, the i-emaindiu* havin<; been enclosed by the vendor and occupied by him for a number of years, it was held that ho mio-ht take advanta;jje of the condition and rescind the contract on the {ground that it would involve him in j^reat trouble and expense to answer requisitions as to the one and a half acres (c). And in Mmv- son V. Flciclicr {t\vitlisianilin;;any pjnnions ne;;otiation or litigation" it was said that thou;;h the vendfti* nii;;ht, pondin;^; neju'otiation oi- litij;atioii, exercise his ri;^ht ol' rescindinj;' it' he dii' to put him to unreas()])al)le or unjust expense ( /"). And so, where the purchaser refused to complete the contract when the vendor had )ne all that he could do, it was held that the lattei' mi,, cscind (not havinj,^ waived his ri^'ht) though nothing remained to he done l)ut to make i)ayment of th'^ money (//). lUit the condition in that case was that if from any cause whatever the contract was not completed by a certain day, the vendor should be at liberty to anmil (//) Wliere a comlition of the sale is designed to protect tlie vendor against some defect in the title it should clearly and without ambiguity state the nature of the defect, so that the purchaser nuiy have the opportunity of exercising his judgment upon it ; but it is not necessary that the legal efiect or inference shoukl l)e stated if the facts are dis- closed (i). So, where a condition was that a recital (c) Dart V. & P. 6th Ed. p. 183. {d)Iie Arbib d- Clasn, L. E. (1891) 1 Cli. ()01. {e) Page v. Adams, 4 Beav. 2)50; and see Lord v. Stephens, 1 Y. & C. Ex. 222. (/) Ilardman v. Child, 28 Ch. D. 712. (g) Hudion v. Temple, 29 Beav. 543. (h) See Be Dairies (C IViml, 29 Ch. D, 026. for instances of unreason- iible objections. (i) Smith V. n\itt.-, 4 Drew. 338. WAIVKU sntSKt^MllNT Tn 'I'lIK ( '( (NTIIACT, 19 siipportiMl liy a 5. Exercisiiig acts of ownership over the l&nu rei.ders the purcharer liable for interest though he makes no profit : Ballard v. Shutt, 15 Ch. D. 124. (i() Simpson v. Sadd, 4 D. M. & G. 072. (») Hyde v. Warden, 3 Ex. D. 72. {w) Micheltree v. Irwin, 13 Gr. 542 ; Southcomb v. Biihop of Exeter, 6 Ha. 213, (x) Micheltree v. Iricin, 13 Gr. 541 ; O'Keefe v. O'Connor v. Beatty, 2 App. R. 504. Taylor, 2 Gr. 307: TAKING POSSESSION, ETC. 21 title iy). The principle is veiy tersely put h\ Spragge, V.C., as follows: — " Could [the purchaser] rtmsonably say, if the title turns out not good, I intend to return the property' into the hands of the vendors in the state to which I liave altered it ? If he could not reasonably say this, the alternative seems to me to be, that he must be taken to have intended not to investigate the title " (z). In this case there was also some evidence of the purchaser's prior knowledge of the title. So, acceptance of a title may be implied from writing a letter apologizing for non-payment of the purchase money (a>, for until the title is approved the purchaser is not, in general, bound to pay the purchase money (h). Taking possession, pa\ irg part of the purchase money, giving securit}' for the balance, and mortgaging Iuh" interest in the land were held to bind the purchaser as an accept- ance of title \c\ But payments are no waiver where the contract contemplates immediate possession, and provides for payments by instalments ((/). Giving a mortgage for purchase money, and taking a release of dower from the niotlter of infant heirs were accepted as evidence of ap- p.oval of the title of the heirs {(^\ So, building on the land, asking ^wice for a conveyance, and offering a note for the purchase money are acts of waiver (/'). Delay in making requii-itions on title after delivery of the abstract (the purchaser being in possession >, and only requiring production of the deeds after notice by the vendor to com- plete the purchase conclu). Where an agreement for sale of building lots contained a stipula- (r;) iV(/,'/ V. U'imleii, Ui Beav. 23'J. (/() liac V. GetUes, 18 Gr. 222. (i) Blttch/ordv. Kirkpatrick, GHeav. '2'A2. (j) Darby v. Greenlee*, 11 Gr. 3o3, 'Aiti. (/■) OKecje v. TtnjUu; 2 Gr. 307. (I) lioicn V. Stemo)i. 24 Beav. 631. (hi) IHxon V. Astley, 1 Mer. 134; Steiem v. Guppy, 3 Russ. 171. (») Vancouver v. liliiig, 11 Ves 458, 464; Burrowjht v. Oakley, 3 Swan. 151). (o) Miteheltree v. Incin, 13 Gr. 644. (p) O'Kee/e v. Taylor, 2 Gr. 308. And see Crooks v. Glenn, 8 Gr. 289. WAIVER BY HE-SALE. 28 tion that the purchasers might occupy an2, {g) Burncll v. Brown, 1 J. & \V. 175. yh) Uurnell v. brown, 1 J. & W. 174; AUhi^ell v. Ahiwdl, P. Pw. 183; Gordon v. Hurnden, 18 Gr. 231. 2G OF THE PURCHASERS RIOIIT TO A GOOD TITLE. cured, the purchaser sliould immediately insist upon it and refuse to proceed further with the contract ; otherwise he may bind himself to complete the purchase. So, where an estate of seventy acres was described in the particulars as freehold with leasehold adjoining, and it appeared that only eight acres were freehold ; but the purchaser having ac- quired knowledge of this, went on to treat as to the title, and the vendor cleared up all objections ; it was held that the purchaser was bound to complete the purchase {i). And where a purchaser was under contract to buy an estate^ which he learned for the first time from the abstract to be subject to a right of sporting over it, and went into pos- session, it was held that he was concluded by his act and could not avail himself of the objection (j). But if the objection is one that may be cured it will be matter for inquiry whether the purchaser committed the alleged acts of waiver in the expectation that the objection would be removed {k) ; and the continuance of negotiations is strong evidence that the purchaser did not intend to waive the objection, for a man by going on to treat does not waive an objection which he is continually insisting upon (l). (/) Vordyce v. Ford, 4 Bro. C. C. 41)5 ; cited in Dretce v. Hunson, 6 Ves. 679. (j) Burnell v. Brown, 1 J. <% W. 168. And see Ogilvie v. Foljambe, 3 Mer. 63. See also and compare cases in which the purchaser enters into a contract with notice that a good title cannot be made ; ante, p. 6. (fc) Cxlcraft V. Roebuck, 1 Ves. Jr. 225 ; O'Connor v. Beatty, 2 App. R. 505. (/) Knatchbull v. Grueber, 1 Mad. 170. THE ABSTRACT OF TITLE. 2T CHAPTER III. THE ABSTRACT OF TITLE. 1. Rigid to (thstravt. 2. Length of title ahfitraeted. (i) 60 years ; good root. (ii) More tJian 60 years. (iii) Lem than 60 years ; Bolton v. London School Board. 3. Contents of abstract. (i) K jaitahle interests. (ii) Concealment of documents. (iii) Perfect abstract. (iv) Matters of title and nuitters of conveyance. 4. Delivery of abstract — serving objections. (i) Practice between parties. (ii) Practice in nmsters office. 1. Right to Abstract. In Ontario, the purchaser's solicitor in investigating the title nearly always depends upon a registrar's certificate of registered instruments, sometimes called a registrar's abstract, or upon a pereonal search of the registered title ; and it is not infrequently made a condition of the sale that the vendor will deliver a registrar's abstract only. How- ever, in the absence of any stipulation to the contrary, the purchaser may require the vendor to deliver a solicitor's abstract {ni) — so called merely for the purpose of distin- guishing it from a registrar's abstract. In matters of importance an abstract is usually demanded. (m) Dart V. A P., Cth Ed. p. 319; lie Bouttead & Warwick, 12 Ont R. 483. 28 TIIK AMSTUArr OF TITLE. X r 2. Ijt'tHffli of flflf olintnirfctl. Tlio altstract sliouM covrr a ikt'idiI of at least sixty yoars prior to tho date of the contract (thoiijjfh the invcsti- j^ation of the purchaser iinist he carried hack still further), unless the ^rnint from the C^rown has l)een niade, or the title (juieted, within that period. If the ^rant has hei'ii made within sixty vi'ars the abstract should commence with the patent; and if the title has been cpiieted under the Quietin;jj Titles Act, it should connnence with the certificate of title (n). (i) 00 years ; (food root. It has been said that the reasons for the sixty years limit do not apply to this countiy. The writer cannot ai^ree with this view. J3y the provincial Act, 32 Geo. III. cap. 1, it was enacted that in all matters of controversy relative to projierty and civil ri<;hts re.sort should be had to the laws of England as the rule for the deci.sion of the same (o). It is fallacious to suppose either that the whole body of En). This inter- pretation seems expressly to cover the present case. The settled practice of conveyancers is said to be part of the common law {q), and in this respect the common law iu ((/) R. S. (). cap. 113, sec. 29. (1)1 See the i*e-euactment ot this in It. S O. cap. 93, sec. 1, where it is declar ;(l thtit in such matters resort should continue to be h:id to the laws of Enj^land as they stood on the 16th October, 1792. (p) Doe dem. Aiidernon v. Todd, 2 U. C. R. 87. {q) lie Ford d- Hill, 10 Cli. D. 370. SIXTY VEAHS; fiOOl) HOOT. 29 the absence of any Htatutory enactment is our only f^uide. The \idliun 7\'tnj>a.9 Act has been held to be in force here (/•), and it would be dithcult to find reaHon.s conHintent with this decision for the exclusion of the rule of property as to leny;th of title (s). Various reasons have been assi},'ned for the; sixty years limit (/) ; and after the passinjr of the Imperial Act .*} and 4 VVn«. IV. cap. 27, which shortened the period of limit- ation of actions for the recovery of land, a discussion aro.so amonj^^st conveyancers as to whether a correspond in j( v'nnn facie evidence which it attonlH of the tlien condition of the title to the fee (//). 'I'herefore, in selecting' ii docu- ment for tlie connnencenient of tho ahstmct, care should bo taken not to .select one which refers to any anterior assurance or depends \ipon it for its vali). A deed by one who appears on the face of the deed to be a trustee or executor is not a good connnencement ; for it cannot be ascertained whether or not he has acted within his authority unless the instrument under which he acts is abstracted. It is a common though unsafe practice for solicitoi-s who invest trust funds upon mortgage to describe (»/) Kayes Conv. 4th Ed. 442. (z) Preston Aba. 5. (a) R. S. O. cap. 112. (b) Ih>Uon V. Loudon School Hoard, 7 Ch. D. 766. But see the criticism of this case, pogtea, p. 34. MdllK THAN SIXTV VKAlfS. n\ tli(! iiiorti'aj'ccH in tli(^ inoi't^^iii^c urpose, are not deemed to be misrepresenta- tions of the facts (d). (ii) 3[ore tlmn Co fjrarM. When the abstract should, and when it should not, lie carried back beyond the sixty years has ocoisioneij some controversy. "^I'lie subject may Ik? considered as follows: — (1) When the abstract shows a ^ood title f(n' sixty years, and the vendor has older deeds in his po.ssession. — There is little or no authority on this but the opinions of conveyancers, but they seem to concur in the view that the documents need not be abstracted thouj^h they nmst be produced (e). If the purchaser desires to have them abstracted he must, ajiparently. bear the expense himself. The vendor is under an oblioation to deduce a ^^ood title for sixty years. It has been said there is no rule that a purchaser cannot require a title to be shown for more tlian sixty years (/'). But, on tlie other hand, it is (c) lie Harmandb Uxbiidgi', etc. li. Co., '24 Ch. D. 7L'o. (rf) Carritt v. li. & P. Adv. Co., 42 Ch. D. at p. 272. (<) Dart V. cV P. «th Ed. p. 339 ; Havos Conv. 4th Ed. 444 ; I Byth. & .Tumi. 53. (/) Hayes Conv 4th Ed. 440. n2 THE AHSTltACT uF TITI,i:. (■l«'ar lliui if tli«' nliHtrrtot shoWN a ^niotl title lor sixty years it is siitlicieiit. Aiitl tin' nccitlctit <>!' the vemlor liaviii;; in his |>(»sst'ssi'>n oilier deeds cariuot make the ahstnict insiitVioii'ut (ur«'liuH('r in tlie nriciiiiit coiivoyajjcfj luul actiuil iiiH|H'('ti()ii (if tli(! iTcitiMl <|(>(m|h and waH HatiHficd with tlit'ir contrntH; and I'lntln'r, it is to Im- ()l»H('rv«'(l that if is not prohaltlf that a vendor would reeite <|eedH which alf'orded eviih^nce a;^MiinHt hi.s title." IJnhsss there is sonie- tliini; to repol thes*; incHuniptionH, tho vendor need not |»n»du('e d(M.'ds more; than sixty years old not in hi.s pos- session, though they are referred to in the abstract (/), nor can ho l)0 rcMpiircd to abstniet tluMn. (4) When then; is Ji refei'enco in the abstract to sonie- tliin;; l)eyond the sixty yiiars which is deiof^aitory to the title. — fn this ca.se the abstract do»'s not conform to the rule that the vend(»r niu.st show n, ^ood title for sixty years, if anythin<^ appears upon the absti'act to cast a douJit upon the title it must be carrieil buck far enou^di to remove the doubt, if that can be done, and the (!videnc(5 must be produced by the vendoi' w hether it is in his pos.session or not (m): and on the sale of lenseh(jM jjroperty without any condition protectinj^ th(! vendor, he must jiroduci; and abstract the lease which is the root of his title thouj^h more than .sixty years old (7?). (5) Where the rei^istor shows somethinj; wliich casts a doubt upon the sixty years title. — The relt(>ii V. Loiulon School lioofd (i)), it was held that a recital in a deed more than twentv years old that the vendor was .seised in fee simple was suHieient eviilence thereof uncK'r the Vendor and Purchaser Act, and that no prior abstract of title could be demaiuled e\ce]>t in s(» far as the recital siiould be proved to l)e inaccurate. It was ariru«'d that the recital of seisin in fee was a recital of. a conclusion of law, but Malins, V.C, held that it was a recital of a fact or matter within the meanin< proceedinj>;s sul)Se(|uent to the delivery of the ahstrnc , th;/. is to say, at a period at which the vendor is ei)l Het' to ask the purchaser to delil)ei'ate upon the suiHcieiicy of the evidence jUiduced, and to make in(piiries and disprove, if he can, the testimony of his witnesses. It is, howevej , an estahlished principle that the purcliaser may re(|uire an ahstract even tluHi^h he i"ay have aj^^reed to accept the title (t), and the vendor does not dischar;;'e himsrlf from his oljli^^ation hy first deliverinr>' to the purchaser the evidence of his title namely liis title deeils {n). The decision in(|uestion would throw upon the {)uivhaser the duty of examininjLf all the deeds prior to the deed containing the recital, without an ahstract, in order to determine whether or n(jfc tlie recital were true. The Act merely creates a new species of testimony. The n^citals in deeds twenty years old are intended to take the place of other modes of i)roof. Tie result of the legislation is that where a vendor, hut for the Act, would have heen ol>liyed to prove certain facts hy declarations or certificates, he may now estahlish the same facts hy means of recitals in his deeds twent}?- years old. And it is suh- iiiitted that anything that could not have })een proved by declarations or certificates hefore the Act cannot now ^j« proved by recitals in deeds though of the required {f) 8«e 1 Byth. & Jarm. 253 ; 2 Ibid. 678. («) 19 Ont. R. at p. 444. (0 Morri* v. Keartley, 2 Y. A C. Ex. 189. (u) Home v m tufUid, 3 Sc. N. R. a40 ; Sag. 406. m rm \n I ii v< r »»i i n i i: T)tl> \ ft It) ill \ it|' M I i( Ik I'I M niMlIlT I lull IM 11'* 'l||Mt<<>|l| ilili- ol ^^|.>^>l l»\ MU> MJttM'il"! Itl' «'\ itll'Mff '(H\ I' llltit I|(|m|i||«(| ||\ ihi'
  • <'i|'t ( l\i>n»Mt«l\ I'M \'i» nft'imnilMl imi ul lunni |t>M(i (ii I III- \ iilnlil \ III II I il |i> III liiouv ni> opiHiiin 111 i'i>i|ir ( (■ ) I'hiIov fi I'oiiilil I'lii III ti'ilfij ill II t'uiihiirl tliiii ii'i'iliil'i <\VOH<\ \ I'MI'A olil sllllll l>i< IllKi'll III III' ('I 'Ml lll'HV . \|i|i'IH'i' il I'I llii' ii|»iinnn III j^miil ciiiixi vniii'i'i'i o I" (lit' r.'U'i'^ ii'i'iii nl\ llioMi' ii'i'itnl' Mil' w illiiii llii 1 I'miilil imi w liii'li hi'I imU (111' ImoI' ;i-i 111 I'lifiMi' llii' |iiin'liiiMi r 111 |iiil^'' im lnnis,>ll HM to Ihi'ir K'^nl I'lli'cl. m ri'Hill, iiinl lliiil ln' wmilil \\\\{ lio I'oiniil In ;« rci'il.il I'milniiiini; ii nun' ciiiii liiMimi, n.'i fov i'\;uuj>li', M ii'i'iliil ol lii'i»'plio!>M«' t>' .'ill ('I'll! I ••icl;*^ ll \n siiliMiil li'il lliiil n'1'iliilsi «i|' o»M\oh>sii>ns. roNulis or I'lrcclM, \\ iljiniil inviiii'. Hh' I'lU'l'; »>n whu'll ihi'v ilopiMiiJ, iMijJil Mill lit I'I' liimlin^-. Ami oort,'Ui\ly i\w ijHivshon ol si'isiu in li'i' \h iml miii i m. ninllcr v>t' t'aot, .'^s «listini;\iislu>il iVoui iiimIIit ol' l.iw i wuiilil I \cU lo a ini y Tho nHMt.'il tli.'U :\ ihtnou is simsoiI m I'n' Hiniplt' \h »i i>vit."»l of M v'lMiolusiiin nt" Inw luixoil with iiircn-iiccM nl' tni'l lt>tnith o.'vmuM 1h» :u'ii may wholly iK^piud upon tlicii' I'iMiHinirtJon. in which cm.so it woul«l ho a \nno (|uos|ion {)[' Imw. ll" iho pinvlia.s«n' w»mj1i1 not ho hound to juvi'pl tlu' sworn I'vidonco of tho vouilor \\\>o\\ thi' \aliility of tho title, nor th(M)jiinioii (If) i iuth, A Jwr. Clt) ; Dftit V. a: i\ 0th Ed. 1(»(3. <'ONl|-,N'M ni Ari«illiA' I »7 III" I'tlllllWl'l, IM-illll'l mIimIiM |m> |m> (illlij^Cfl I.M (M'»<'|(>, M»" ^/^*Tfi IMH||> »»r M Ifcildl ullM'll mImM'Im t|(i'in 1,1(1' MMKIC |llaf|C wiM( m(|m'|- H|H')'icM dl' I'Viflf'IM'f A jHiMil. Ill" roiiiMMtin'iiM'nl, liM.viii^ Itffft ()t»w| upori. fJc mIihIkicI mIiuiiIiI hIhuv iti »'liroii'i|fi(jri('(tl oi/h'r I'Vf y «l«'V'ilti li'iii ul' (lii< i'il(i(«< liy ♦l''»'*l, will, <»»■ (if.iMM inMliiifricfif,, or l»y mlit'i ilinirt', iiirltiiliiiii; nil inriMiilidirMfM, wli<'l.li«'f 'liMrfiMrj/*"! Ml i«Hif4liii^, lull, •'srliiilin^ IfiiMi") ulii'li Imiv<' «<(iif<'l dy •'llliisiiiii (iT liiiM'T') ll, JM in lii> lioiiic in rfiiri'l MimI, il m Jul- ||ti> VctMJui (,o mI.mI*' IIh' I'MrJq ('niiii(<(-l,(>«t wifli Mic fif,l<', mill lui lli<« |MM(*liMHi'» III )i('l|.n' 'll' I Ik (I i(i(il,M iiilil.y An'l nil MM M|M'ii iiiiil I iM'l. I,lii> vi'M'I'ir riiM'd (ilmlnM'l, mI. Iii'i 'iwn i'X|M«iiM«' fviiy ili't'l rr III'' lit,!'', lli'dii/li li'' MIM\ Mill, Im' III |MiHMI'MMi'lll 'll lllf MMKll'f//; li) I'iijii ilnhh ihIiiihIh IIh'II' iii)i\, lifiu<'\ t'l , III' miinv 'l'.''nrf(iiit'i ''infi'f l,<''l willi IIh' lilli' III' vvlmli II |iiii< liii'd'i' iiii'l ii'il, l(" inf'/f •Mi'l , I'lti iiiMliiiii ••, ill iluinl i'liiM 1(1' fiiml oi miIMmumiI,'! v/}ii/'.h iiU'i'cl llii' lii'iM'linnl ^\, lli> ir priMfiiy 'n Iliiii" ••llii'ify I'lif w»int 'if r»';^i«l,rn, uii'l shoii]'] !/<• ab- Mtni<-|,rlr.. H. (J,,., '2i C.h. I). '2'', . ViA.CrtUV. YAW. 38 THE ABSTRACT OF TITLE. Whether or not documents creating equitable charges or interests which have been satisfied should be abstracted has been questioned, Mr. Dart maintaining that all defunct equities may well be suppressed, though V. C. Wood held the contrary in Driimmond v. Trace y (a). This case, how- ever, has been overruled by Re Ford tC* Hill {b), in which the Court of Appeal held that the purchaser was not entitled to an answer to the following requisition : — " Is there to the knowledge of the vendors or their solicitors any settlement, deed, fact, omission, or any incumbrance affecting the property not disclosed by the abstract ? " And by the Regis- try Act (('). " no equitable lien, charge or interest affecting land shall be deemed valid in any Court in this Province as against a registered instrument executed by the same party, his heirs or assigns ; " and it is not desirable that the purchaser should be informed of them if existing (d). Mr. Dart recommends a general requisition limited to any docu- ment, judgment or charge affecting the title or property, not noticed in the abstract, which If remaining undisclosed might prejudicially affect the purchaser {e). With respect to eiuirges or incumbrances, if the purchaser has searched for them in the public offices and has ft)und none, he is not ol)liged to inquire further, and will not be affected by those of wiiich he has no notice. An olIriuM' nml may !»«' |>iinish(>y-( J»'n«M'al, ^^ivon al'trr |tr«'vious nntifc to tin* jXTHon intiMitl'.Ml to ho proNccMtt'tl ol" the application for leave to ])roHccutc (A); anniJin V«'ndoi" and Purchaser Act (/.) may have upon the eujictnient.s just ' refei red to may jjive rise to serious (piestions. Tin' v\ct materially lessens the olili^a- tions of the vendor as U\ proof of the title deduced, and allows him to r«Muain passive while it casts upon the pur- chjuser the hurden of disi)r(»\ injj- mnnv thinj^s which tht5 ven«h>rhut for the Act w«)uld have l»t>en ol)li;jed toiHtahlish. It is not an uncommon condition of a sale of land that certain recitals shall he deemed to he conclusive evidence «)f the mattei-s recited, and in other ways the linhility of the veuvior is often restricted. No ohjectiou has ever heen urixed t«> such conditions, as far as the writer is aware, on account of the Act in question, thoui:;h thei-eare many cases in which sales have heeti set aside for misrepreseiitationH in the particulars and conditions. If thru thi' vendor nuiy limit hisresponsihility hy conti'act, may not the Vendor and Purchaser Act have a likt> etU'ct :' (iii) Pci'/c'cf (thsffifcf. When tlie ahstract, connnencinj;' witn a proper root, and continuiui; the history of tlie title down to the contract, shows that the veniU>r either is, or will l.)e, able, at or before (.;) 77t«> Crimimil Codf, ISO'^, see. 370. (h) Ibid; sec. i')4S. [i) Ibid., sec. 370. I.;) Smith V. liobinsim, 13 Cli. D. U8. (k) l\. S. O. cap. 112. i'i;iiKi;<'r amstiia'T. 41 tli«' tiinn fix(«l for <'oin|»l«'t.if»n, to ronvoy io th»i imrrlumcr iUv. Icj^iil and «M|uit»il»l«' rHtHb-H in tlu! land, pvcn alUu>nn^li tli(^ al»H»Mi('«« of |niitifHorotlu'r rjn*nrnHtan''t>H may rotisi*!*'!- jilily delay tln' convi'yann*, it is H/iid to Itc a jn^rfiTt, aliHtmct (/). An al»Htra<*t may Iw Hiitlicicnt lor tln^ purpoHr oF dclivrry il' it rj'I'rrH to all tli** dociimcntM in tlir poHWHHion or control ol' tlic vendor at the time of delivery (;/*). If tlie ulistract is perlV'ct on its faee init omitH a material deed it is inHutli('ient(/;). And an the ])nrchaKer is entitled to have everythinj^ displayed on the alntrart which is material in I'ormin^ a Jud^'nient npot< tin; title, he i.s entitle«| to aHHnme that thert' i.s nothini; in the deeds ahntracted which is material to the title hut what appears on the ahstract ; and if any thinj^ material is <»mitted theulfstract is inHiiffi(;ient(o). It i.s helievud that no ca.se is repoited in Ontario in which the ipjestion of the sutlicieney ov insuHiciency of an alistract has heen determined. lint the writer veiitnre.s the opinion that an al»stra(!t which exhiliits tht; title as re^^is- tered (in(!ludinu all instrnments re'dstered aijainst tin; fninl whether jtroperly part of the title or not) wouM l)e a sufil- cient and jteifect a')sti"act, if the re;^riHtered title shows that the ventlor can convey or jirocure the conv«jyance of the Iei;al and e(|nitaltle estates to th*,* purchaser, unless indeetl tim pinchaser is aware of inne;^istt;red instruments oiothei- iiiatter.s afl'eetin^ tin; tith;. In L'lu'il v. Puton (jt) (decided since the first edition of this work was puMished in wliieh the ahove opinion was ventiired) it ajipi.'ared tliat one of the deeds in the chain of title was not reH;iHten;d heforo tii»; action was l)rotij;ht for specitic performance. On tlu; (/) Divv. Oonv. 4tli e/>. Tlie determina tion of this point was not essential to the ). Upon receiving the abstract the purchasers solicitor should carefully peruse it, noting as he reads all matters which retjuire explanation. He should th -n ex ne the title as registered, either personally searching ^ >e .egistry or procuring a registrar's abstract from the Crown, or from a certificate under the Quieting Titles Act, if there be one. He will then be in a position to accept or reject the abstract, or if satisfied with the abstract to make requisi- tions upon the title. (j) Per Osier, J. A., Martin v. JJapee, IS App. R. at p. 389. (//) I\r Macleimaii, J. A., Martin v. M I'l.u-, liiid., at p. 39S. (z) Ht'O Furies v. I'lucock, 12 Sim. at p. 51S. (a) IvrU-s V. Peacock, 12 Sim. 528; Puje v. .hliiii, 4 Beav. 209, 2S.j. (b) Parr v. Lovenrove, 4 Drew. 170; Laird v. Puton, 7 Oat. R. 137. KELIVEUV OF ABSTRACT. 45 4. Del'n'crt/ of ahstrnvt — Serrinr/ oltjfrtions. The pi'riomrhaHer pive notice thut he \Vi»nl(l not coniplfte th«' iinrchuHe; the ventlor Htiltset|nently heen waived, then the ])arties mnst he governed hy the general principles of the iVmrt (/(()■ The conduct of tlu' jiarties and theii* dealin'^s nmst determine their respective ri;;hts in every case (n). In jtiactice, a period of ten r at tlio time of deliver- iufjf the ahstract. The nu're service of such a notice upon the purchaser who is not hound ]>y the contract to make his ohjections within aspecitied time cannot of courao limit his riirht ; but as tlio Court would rej^ard the time tixed by the rules of Court for making objectiona as a reason- able time, it would not be safe for the purchaser wilfully to disregard a notice which specitied an equ&l or greater time for servinjjf his objections. But, notwithstanding a 0) I'ppcrton V. Sickuhou, 6 Ch. App. 443, (k) Vfiin V, Cattel, W, N. (1873), p. 183 ; Compton v. liagley, L. R. <1892) 1 Ch. 313. {I) Pinckf V. Curteh, 4 Dro. C. C. 339 ; CutU v. Thodey, 13 Sim. 206 ; Eadu V. iri7/ia»M«, 4 D. M. A G. (574 ; Seton v. Slade, 7 Ves. 266. (m) Vpperton v. NickoUon, 6 Ch. App, 443. (n) See ante p. 19, et teq. I'l(.\< ricK IN MASTKIt s oKlliK. 47 coiiilitioii I'mi' iiiiikiii;; ulijrrtions wiiliin u ctTtuiii iiiiic find riiiluif to urcliMH(' ((»). Tlif ohjrctiMii, liowi-vfi-, must ^tt to tho hmM oI' tln' title, iiii'l will not, Im* ullo\vr<| imlcss it (Iocs (/»). Hut W tlif »'<»iiti)ict Ih rt'H«'iiiio\ title; noi- coiiM he ill cases of rcfereii(!(3 to a Master as to titl<;, tlie practic*! iw laid down liy the consolidated ndes (»f j)iacticu (s). The vendor is to deliver an abstract forthwith on demand to the purchasn*, who must s<,tv« ol»jections within seven (Uiys or he will he deemed to have accepted tlie al)stract as sulKcient. Jf Ik; serve one or mrjn; olij<;ctionH the abstract is open as to these, hut he is to he deemed to have accepted it as sutlicient in other respects (/). And the Master lias no power after tlie time has expired for aervinjj objections to allow the purchaser to make other objections ; though on a proper case li«;ing made for it leave may be granted by a Judge (u), unless the reference was ((>) Warde v. Dickion, 5 .Tur. N. H. :U5 ; n'ant v. StaUibra»i, L. Ii. H Ex. 176; Warren v. lUchardton, You. 1 ; Brown v. Pear$, 12 V. R. 3% ; Nation V. Armitrong, 22 Ont. K. 542. (p) Re Thompion it Curzon, o2 L. T. K. 4U8. See Imp. Bank v. ilet- calfe, 11 Ont. R. 467, where, on a reference which was said to have been taken on objections delivered before action, farther objections in the Master's office were not allowed to be taken. (q) Soper V. Arnold, 87 Ch. D. 9C ; affirmed H. L., W. N. (1889), p. 186. (r) Ehe v. EUe, 18 Eq. 196. (f) Rales 108 et §eq. (t) MeilanuM v. Little, 8 Chy. Ch. at p. 267 ; and see Bank oj Montreal V. Fox, 6 P. R. 217. (u) Clark v. Langley, 10 P. R. 208. 48 THE ABSTRACT OF TITLE. taken upon a jud»;nient referr'':g;' particular objections only ('•). It" the purchaser selves objections the vendor is to answer them within fourteen days. As soon as the pui'- chaser accepts the abstract the vendor proceeds to verify it. The purchaser may then serve objecticms to the proof; and the same practice prevails a^ain (tr). The whole practice under these rules is very succinctly stated in McMcmiM v. Little (.'), and is summed up as follows: — 'Under these orders, then, as I construe them, the blaster has to d.etermine according to circumstances and upon the particular points in (piestion, (1) whether the altstract delivered is complete or not, and thereupon allow or disallow all objections raise*' and unii«;ttled out of court as to its surtieiency in for'n ; (2) if he dis.illows the objec- tions he is to certify that the abstract is perfect (i.e., as ) i^ainst the objections), and if the se"en days have elap.sed, then the purchaser cannot object on any j^round to the abstract unless he successfully appeals from the decision, or unless he has also objected to the title numi tested in the abstract: (Ji) if the Master allows the objections, then he is at the purcha.ser's request to retniire the vendor to make the abstract as perfect as he can, and when that is done he is to certify to that effect, an/ of Rf'tiitifrif Acts. 2. What roosf'tufefi vejistrHtion. 8. Lea xefi< thin. 4. £(juit>(hle interefitn. . (i) Tuck'uKj. (ii) Consol'ithdion. 5. Ri'ii'tdi'iirs Abstrdct. 0. Rtijid to inspect book'M. 7. The SQdVcli. 8. Xoiice; priori ties. (i) Iif(/i8fere), there was no change in the policy of the law until 1851 (c).. Durin;,^ this period registration was not in terms made imperative, but might be had at the election of the parties interested («/). The statutes had no operation until the patent from the Crown had issued, nor did they apply until after a memorial of some instrument had been registered. Before such a registration the title was an unregistered title ; upon such a registration, it became a registered title, and all conveyances th6n had to be registered {r). The omission to register an instrument had the efl'ect of avoiding it as against a subse- quent purchaser- of the same lands (/). Registration was, in consetjuence, rarely omitted, and the register was ."o much looked upon as exhibiting the true state of the title that Spragge, V. C, said it was no doubt the intention of the legislature that it should do so {;/). Registration, under these Acts, was not j^cf sc notice (h) : and there was no express declaration that dec^ds should take effect by priority of registration. Tlie Acts were intended to settle priorities, not between registered con- veyances themselves, nor between unregistered conveyances themselves, but between registered and unregistered con- veyances of the same land. The intention of the Act of •Geo. III., as expressed in the preamble, was that when any conveyance of land was made, " a memorial of such transfer •or alienation shall be made for the better securing an). The Act of 18G5 made an important change in this respect by altering the method of registration ; for while this ha) : — " 1st. Priority of registration shall prevail. 2nd. But twelve months shall bo allowed for registra- tion of wills. 3rd. Registration shall in E(|uity V)e notice. (h) C. S. U. C. cap. H vpp R. aaa. HftMMAHY OF nEOlSTRY ACTS. 08 4th. Priority of registration Hhall in all cases prevail, except as against actual notice. 5th. Equitahle liens and charpes shall not prevail in any Court against a registered instrument." It will he noticed that though section (54 of tlu» Act of 1H65 (section 66 of the Act of 1867) made registration notice in Equity only, section 65 (section 67 of the Act of 1867) declared that priority of registration should in all cases prevail, except as against actual notice. The com- bined effect of these two secti(ms was said by Hicluirds, C.J., to have l>een to limit the power of a Court of Equity to give relief to cases of actual notice only, and not to extend to courts of law the power to relieve in cases of notice (q). But the Court of Conunon Pleas in MUUir v. Smith (r) were of opinion that actual notice, under this enactment, was availa1>le in Courts of Law as veil as in K(|uity tosavethe unregistered instnunent. The Act, 8() Vict. cup. 17, sec. 4, amended section 66 of the Act of 1«S67 hy niaknig registration notice hoth at Law and in Ecjuity. No change has been nade in this law on any of the revisions of the Statutes. The policy of this legislation is to make the registration of an instrument /»'r w notice to all persons subsequently dealing with the land; it is imma- terial whether a search is actually made or not (m), for the statute proceeds upoi^ this, that a paity ao(|uiring land ought to see whether there is anything registered against it, and he is in every cjise assumed to have searched uIk her he has actually done so or not (/). The Act, 9 Vict. cap. lU.sec H, declared tluit a memorial should contain the date of the conve^'ance, tin; names and additions of the parties and witnesses, and their [)Iaces of (.y) lioiithj V. Fox, 2'J U. C. R, at p. 72. (r) 211 C. P. 47. (d) '''"•mMJOJj L. d- S. Sori'-ty v. Kittiidne, 23 Gr. I)3.'». (0 iiii.td- Loim Co. V. .S7»/). The doctrine of defective registration is now abolished, but it is the duty of the Registrar, notwithstanding this, not to register any instrument except on such proof as is reciuired by the Act (2). 2. W/utt vovMtitafes resist ration. Before the amending section 93 of The Reffintnj Act, 1S03, some difficulty was experienced in ascertaining what constituted registration. The duties of a Registrar in registering an instrument were thus defined by Harrison, C.J., in Lnwrie v. Hutlihu)! {a): — " 1. Enter the instrument in the registry book in the order in which it is received. 2. File the same with the affidavit of execution 3. Endorse a certificate on the instrument. 4. ^Mention in the certificate the certain year, (h) Rohmn V. \r,id(l,-ll, 24 U. C. R. 571. (v) lioHcher v. Smith, \) Or. H47. (w) Head V. Whiteheiul 10 Gr. UC. (.r) Miiiirath v. ToM, 2() U. C. R. H7. (//) Hoiicherv. Smith, It Gr. 347 ; Head v. Whitehead, 19 Gr. 440. (z) The lienintnj Act, 1893, bees. 44, 81, 89. 90, 100, 108. And see Stoddart V. Stnddar't, 39 IJ. C. R, 204. See also sec. Hi as to renisi ra- tion of documents ^jiven as security for goods sold to the person creating the charge. [a) 3-t U. C. R. Rt p. 2G1. WHAT CON'STITL'TES REGISTRATION, 55 month, (lay, hour and minute in which such instrument is entered (ind reffiMtered, expressing also in what book the sjune has been entered and the number of the rej^istration. These duties are of two classes : Thase that relate to the registry, and those which are to follow registration, and are designed to evidence it. The tirst two reijuisites which I have mentioned strictly relate to the former class of duties, and are paramount ; the three last to the latter class of duties, and are sulxjrdinate. In addition to these last mentioned duties, there are iluties of a still more subordi- nate character mentioned in the Act. Among these latter I class the duty to keep an alphabetical index and make entries therein. The object of the index is plain. It presupposes registration, and is designed to facilitate refer- ence to the registration. It would be triiling with uomnjou sense to hold that the omission of such a duty avoids the- registration." And again, " If the instrument be i-eceived by the registrar and entered in the register book and tiled in the otfiee, it is to be deemern copy; and the copy is to be tiled (r). Ordein in Council are to l)e regist«;red by the deposit of a certified copy of the order (*/). " Kvery will shall be regis- tered at full length by the production of the original will and the deposit of a copy " (^). Municipal by-laws may be registered ; and " for the purpose of registration a duplicate original of such by-law shall Ixi made out, certiried under the hand of the clerk and the seal of vhe municipality, and shall be registereosit the party registering would be entitled to evidence of registra- tion. Whatever nuiy be the true interpretation of these clauses, it is certain that in practice Crown grants are never, while wills are always, entered in full in the books. Yet both stand in the same position under the words of tlu; Act. But little reliance can be plueecl upon these clauses in striving for a solution of the (piestion, for (e.\ce|)t sec. 72) they in fact refer to the prt'paration for registry ook upon delivery. If we reject altogether the signification of the woi I "by" in this clause, we have left a mere direction to the Regis- trar to enter the instrument at full length. This art of registration. If indeetl it were the only duty re(|uired of the Registrar the clause would be (piite intelligible. The duties of the Registrar cannot all be performed literally tijton pro. \'. IMAGE EVALUATION TEST TARGET (MTO) /. O ^ .^>^. ^ & A ^d ^ 1.0 = 1^ 1^ ^m |2.5 S6 I.I 1.8 m 1.25 1.4 |,.6 < 6" ► V <^ /^ ^llfe %^^ :> wj^ "^^ > Photographic Sciences Corporation \ ^>^ :\ \ A 23 WEST MAIN STK^ET WEBSTER, N.Y. 145S0 (71 A) •72-4503 ' .A. °>A ^^ ^o ^^ ^ i 60 REOISTKATIOX. the instrument to the Registrar. In order, therefore,. to give full effect to this group of clauses, we must resort to the fiction that all the duties of the Registrar are supposed to be performed simultaneously as soon as he has received the instrument. And there is no douht that, by the amending Act requiring innnediate entry in the abstract index it was intended that the registration should date from that entry. Upon the literal interpretation of section 66 the Regis- trar cannot endorse the certificate of registration upon the instrument until after it has been transcribed at full length in the proper book for entry; because he has to indicate the book in which it has been entered, and the " certain year, month, day, hour and minute in which such instru- ment is entered and registered." The entry and registry are here spoken of as one act. The form of the certificate prescribed by this section provides for the insertion of but one date, i.e., the uctual minute of the day of the entry and registration. No reference, it will be observed, is made to the tiling of the instrun 3nt ; the entry is deemed to be the matter to be particularly' certified. The Registrar can therefore give a true certificate without actually filing the instrument, and the certificate presupposes that regis- tration is complete. If the minute of the entry is to be fixed when the copyist begins to transcribe the instru- ment, the filing (by which is meant, the depositing of the instrument in a place prepared for it) cannot take place until after legistration ; nor can the instrument be filed simultaneously with the completion of the entry in the hook, as a matter of physical possiljility, if we take that minute as the minute of retastration. Affain, one is forced to say, this clause cannot be literally satisfied. And the opinion may be ventured tliat the duty of filing the instrument said by Harrison, G.J., to be paramount, i.e., essential, might be found not to be absolutely necessary in order to perfect registration. WHAT CONSTITUTES REGISTRATION. 61 We have seen that as the duties of the Reffistrar are to be performed at different times, i.e., as the receipt, indexing, entry at full length, and filing of the instrument must of necessity be performed at successive intervals of time, th. actual minute of registration cannot be determined if these acts are all essential to registration, unless we resort to the fiction that they are all supposed to be performed simulta- neously upon recei'i^t of the instrument. The minute in which he receives the instrument would on this hypothesis be the minute which the Registrar nmst certify as the time of registration. It is not cv matter of purely theoretical interest to ascer- tain the precise time at which registration is complete ; it is a matter of practical, and sometimes of vital importance. And a consideration of the clauses of the Act grouped under the sub-heading, " Effect of registering or omitting to register " (i), will show that there existed strong arguments in favour of the view that registration was complete, even before the amendment, in so far as the party offering an instrument for registration was concerned, as soon as he had delivered the instrument to the Registrar. By section 86, all wills are to be registered within the space of twelve months next after the death of the testator, or within the same period of time after the removal of any impediment to registration ; otherwise the will shall not be valid as against subsequent purchasers or mortgf gees. If a will had been delivered to the Registrar on the last day of the twelve months, but had not been entered at full length and filed until the next day, could a purchaser for value from the heir, who had previously registered without notice of the will, claim that it had not been registered within the twelve months ? If entry at full length and filing were abso- lutely essential to registration there would be a great deal to be said in his favour. And even if the Registrar, (t) Sees. 84, et$eq. 62 REGISTRATION. anticipating the book in which the will would necessarily be entered, had given his certificate of registration as of tlie time of delivery, it would still be open to tlie purchaser to show that the registration actually took place at a later date. For the Registra)*'s certificate is only prima facie evidence, and may be shown to be untrue (j). So with regard to Treasurers' deeds fo" taxes, and Sheriffs' deeds of lands sold under ])rocess, provided for by section 87. By section 94, " Priority of registration shall prevail, unless before such prior registration there has been actual notice of the prior instrument by the party claiming under the prior registration." The ofTect of this section was considered in Millar v Smith (/.;), where Gwynne, J., said, " To give literal effect to this clause would be to deprive a purchaser for valuable consideration ivithout any notice whatever of the prior instrument before he got his deed and paid his purchase money, if actual notice of such prior instrument should be brought home to him in the interval between his getting his deed and putting it on registry." The Court held this to be the inevitable construction of the Act. Notice then becomes effectual if brought home to the subsequent purchaser at any time before registration of his conveyance. If registration was complete only upon the indexing, entry at full length and filing of the instrument, a purchaser without notice might have been deprived of the benefit of his deed upon receiving notice at any time after delivery of the instrument to the Registrar and before entry ■at full length and filing, by the production to him of a prior secret conveyance. And it is evident that the Registrar's certificate endorsed upon his conveyance would be no protec- tion to liim, if in fact the instrument had not actually been transcribed in the books and filed. So, indexing without (j) The Registry Act, 1893, aeca. 63, 66 ; Doe d. McLean v. Manahan, 1 U. C. R. 491 ; Itobson v. Waddell, 24 U. C. R. 580. (k) 23 C. P. 47, 57. WHAT CONSTITUTES REGISTRATION. 63 entry in the books, entry without indexing or witliout filin). 3. Leaseholds. The Act of 1795, 35 Geo. III. cap 5, sec. 11, excepted from its operation leases at a rack rent, and every lease for a term not exceeding twenty-one years, where the actual possession and occupation went along with the lease. (n) Harrison v. lirega, 20 U. C. R. 324 ; Green v. Ponton, 8 Ont. K. 471. (o) Brega v. Dickey, 16 Gr. 494. {p) Ontario Industrial Loan Co. v. Lindseij. 4 Ont. R. 473. TITLES — 5 m ItKUlsTltATloN'. Th(> Act of l.S4(i, !) Vict. oui). ;M.. sw. IM, (>niict.M| tluit its provisionH Hhould not extend to any leuHc for ji tei'ni not cxceetlinjj; twenty-one yeaiH, when the Jictiiul puNHefSHion went ulon;; with the Icmho. The Act of inm, 2!) Vict. cup. 24. n(!c. (17, .h'ciaiv.i that it Hlionhl not extend to any kjase for a term not exceeding; seven yearn, where tlie actnal po.s.ses.sion wi'nt alon;^ with the hasi> for a h)nj;'er term than sevi'n years, and tlwit enact ment still remains in force (ss than that excepted ])V the Act, l>nt contains a covenant for renewal foi* a term, which, when added to tl\e orii;inal term makes a peiiod longer than that excepted 1)V the Act, it ). And an equitable sub-mortgage created by deposit of mortgage deeds, accompanied by a memorandum in writing, signed by the mortgagor, agreeing to execute a power of attorney to empower the mortgagee to transfer or control the mortgages so deposited, was held not to require registration (r). In 1865 the Act, 29 Vict. cap. 29, was passed, by section 66 of which it was enacted, that " no equitable lien, charge or interest affecting land shall be deemed valid in any Court in this Province after this Act shall come into oper- ation, as against a registered instrument executed by the same party, his heirs or assigns." This enactment was {y) McMaster v. Phipps, 5 Gr. 361. (z) Bethune v. Calcutt, 1 Gr. 81. The contest in this case was between third and fourth mortgagees, whose interests, though in fact equitable, were evidenced by instruments capable of registration and therefore within the Act. (a) McMaster v. Phipps, 5 Gr. 253. (6) Wijle V. Setterington, 19 Gr. 519. (c) Harrison v. Armour, 11 Gr. 303. Et^'ITAULE I .> TEUESTS. U9 continued by the Act of 1SG7, and is reproduced in section {)5 of Thi Rtyisfrif Act, 169-}(,1). This enactment was saiy any possibility conflict with " a re<,nstered instrument executed by the same party." And the like must be said of a resultinff trust. On the other hand, an ecpiitable riji;ht to set aside a deed obtained by fraud or undue influence, or a right to enforce a vendor's lien where the ccjnveyance has beea delivered and rej^istered, are both rights which are neces- sarily set up against instruments executed by the parties; complaining. No distinction, however, can be made^ between them, both classes being undoubtedly void and! incapable of enforcement as against the registered title (n). (i) TiU'hinfj. Amongst other equities there is the right of a mort- gagee to tack, which has been destroyed in so far as it interferes with the registered title. Before 13 and 14 Vict- cap. 63, registration not being compulsory, and not being per sc notice, the doctrine of tacking was not affected by the registry laws (o). But by section four of this Act it was recited that the doctrine of tackino' had been found to be productive of injustice, and it was enacted that thereafter conveyances should be taken according to priority of regis- tration. It also abolished tacking as between unregistered mortgagees, for it declared that where the conveyances were unregistered they should be taken in order of the time of their execution. The law remained thus until 31 Vict, cap. 20, when it was enacted by section 68 of that Act that tacking should not prevail against the provisions of the Act, and all previous Acts were repealed. The result of this is that tacking may take place apart from the Registry Act, but as against that enactment it shall not (m) As to the effect of notice of an equity, see Poatea p. 1)0. (o) Street v. Commercial Bank, 1 Gr. 1G9. 72 KElilSTUATIoy. prevail. The enactment is reproduced in the latter part of Hection 95 of The Rcffistrif Act, JSU.,' ( />). (ii) CorvSolidalion. Consolidation must not oe confounded with tackinj,', though it was attempted in one case (7), where the plaintifl Company claimed to consolidate their mortgages, to show that the provisions of the Registry Act as to tacking pre- vented it. Though there is nc express legislation respecting con- solidation, it is affected indirectlv bv the Ue) See Dominion Sminga Society v. Kittiidije, 23 Gr. a.t p. G34. (<]) Dominum Savinns Society v. Kittridge, 23 Gr. I'M. And see Droiver v. Can. l-arm. Building Society, 24 Gr. 570. (r) Johnston v. lieid, 29 Gr. 25)9. (») Dominion Savings Society v. Kittridge, 23 Gr. 685. (0 Broiccr v. Can. Perm. Building Society, 24 Gr. 50!) ; Johnston v. lieid, 29 Gr. 293 ; see further as to consolidation, Fraser v. Xagle, 1(5 Ont. 11.241; Smith v. Smith, IS Ont. R. 205; Scottish Anerioin Inv. Co. v. Tenuant, 19 Out. H. 203. REGISTRARS ABSTRACT. 73 5. I{«yiMti'in''if ahstnirt. By section 27 of Thn Ht'(j'isiry Art, ISO.], tlie Registrar shall, when re(|uire(l, furnisl'. abstracts of or concerning all instruments or nienioriuls reLjistered, inentionin«jf (i) any lot of la'id as (JescriV)e(;l in the ])atent thereof from the Crown; or (ii) any lot described by number or letter on any registered map or plan subseijuent to the registration of such map or plan; or (iii) any part of a lot where the same is clearlv described and can be identified in connec- tion with the chain of title or has been ascertained by uetual survey ; and of and concerning all wills, deeerson." The statute 9 Vict. cap. 84, sec. 15, was to the lik'^ effect. Tliere was no specific direction that the books or memorials sliould be exhibited to any person who desired to search. By the 13 & 14 Vict. cap. G3, sec. 8, registration of a deed was^to constitute notice in e(]uity of the registered deed. This was the state of the law when Re Webster d-' Rer/istrar of Brunt {c) was decided, wherein it was held that the Registrar was not bound to permit inspection of the books by the person searching. By the 29 Vict. cap. 24, sec. 18, it was enacted as fol- lows : " The Registrar shall, when required, and upon being tendered the legal fees for so doing, make searches and furnish copies and abstracts .... and shall exhibit (z) Gamble v. J/cA'<..v, 7 C. P. 319. {a) Hi il V. Hanks, 10 C. P. *202. (h) Ti Refiistnj Act, 1S03, sec. 27; Re Registrar of Carleton, 12 C. P. 225. (c) IS U. C. R. 87. HIC.HT TO INSPECT BOOKS. 75 tlie ori^'inal registered instrument, and also the l)ooks of the office relating thereto when the party c'esires to make a personal inspection of snch books, etc." This clause wa» re-enacted in 31 Vict. cap. 80, .sec. 20, and is reproduced in The Registri/ Act, JSM, sec. 27. In Rohm v. McLxy (*/), Gait, J^ thought that the abstract index should be exhibited to any person desiring to search if recjuired. Hagarty, C.J., was iiot clear, but stated his strong impression to lie that the index was open to the public as lieing one of the " Ixjoks of the office," made up at the public expense and not expressed to be for the convenience of the Registrar alone. In McNdinara v. McLny (e), the Court of Appeal was fccjually divided on the same question, Burton and Mor- rison, JJ.A., holding that the index was not open ta inspection, while Spragge, C.J.O., and Patterson, J. A., held that it was, as being one of the books of office. It is con- ceded that access may be had to all other books and to the original instruments themselves, but as opinion is unsettled as to the right to inspect the Abstract Lulex it is proposed to give reasons for an opinion in favour of the right to inspect it. (i) It is one of the books of office. The Act, 29 Vict. cap. 24, was the first Act wiiicli retpiired the Registrar to exhibit the original instruments and Vjooks of office relating thereto. The Act is divided into groups of clauses dis- tinguished by head lines; and in the group which is entitled " Books of office " we find it enacted (/) that the Registrar shall compile a book to be called the Abstract Index, in addition to all other books retjuired to be kept. It is a rule of construction that where a statute is divided into groups of clauses distinguished by headlines, the headlines are considered to be portions of the Act, and are to be read (d) 2G C. P. 190. (e) 8 App. R. 319. (/) Section 3G. 76 HK)JISIHAT|n\. as oxplaitiini;' tlu' .sections which follow ihcin (i/). Thus in Woiui V. Iliirl {h), it was held that the headline controlled nnd limited the o|)emtion oT a clause of an Act which, hut for the headlijie. would hav*' heen uidiniited in its applica- tion (/). Applyinjjf this rule to the Act in !<(r)vct Index is on(> of (he hooks of the otHc<\ This ijroupini; has heen continued and reMppears in tlu! Kt^vised Stntut»>. (ii) It rtdates to the ocieinal instruinents. liy st^ctioii '][) of the presiMit Act, " every instrument i'e^ist»M'ed . . . . and the names of every i)erson to each instrument, HUtl tlu» nature of it the nund>ers of rejjfistra- tion o\' all such instruments and the day, month a\»d year of their reoistration, and the consideration or n\«>rteaj>«> monev mentioned tlnivin, shall hy the llcy;iHtrar in ad«lition to all entries hy law retpiired, he t'uteriMl i:i regular order and rotation under the [)roper h(!adin<^ of vach such separate parcel or lot of land menti()nenter it on the Abstract Index as the iirst ste}^ in reuisterinj;' it(jy (iii^ The direction to the lleu^ifttrar to make searches is cumulative to thi» public rijjfht to do so, not exclusive of it. The Rei;istr\' Act (A) rei|uires two thinjjfs of the Rejristrar, (1) to make searches when re(|uired, (2) to exhibit the (..7) y.oxttrn Co 1(1/1,11 R. IP. Co. v. M'lrriage, 9 H. L. C. 32. (/() -iS Gr. Ut;. ((■) S.'e also /. lii,/ V. Kerr, 3 App. Ca. .j'il). But see Rfjim v. Carrie, 31 U. C. R. ;J8.', where a heacK.ne was held nianifostly not to control sue- <3eedin^ clauses. I.;) -I'i Viot. o.vp. 10, sec. 5, sub-sec. \ ; sec. (5u of the present Act. (A-) Sec. 27. KKiirr TO rxsi'icoT hooks. 77 (»ri^iii(il iiiHt/iMiiiK'iitH tim! tlu; hookw relating tlionito " when Mi(! I'Hrt.y (h'HircH to inaUtf u prrHotuil in,s|n!(!tioii tli«;n;(jf." Tlir <)r«linjiry intcrjjrctiitioii ol' tlnH (iruu'tmcnt /^ivcs ilm piirt.y H('an!liin;.( tlic! ri^'lit iorlrct wlirllirr Ik; will ptrrsoiwilly iiiaki? tlu' H!• r<'(|uii<' tlic K<';.fiHtrar to inuk*! it, IF lie «'l<'(;ts to make, a prrsorial Hrai'cii tin; l{«'KiHtrar i,s to cxliiltit all til)! Itookn atxl liiMtnitiictitH i'<;latiti;^ to tixt title; l)>it if tlu! l{.('^istrar iw r('(piir<'ly with tlic r<'(|iiiNition. It Imn Ikm-ii Haiy Wrhslrrs (■nsr), the Ke^dHtrar IukI the cxcliisiv.- ri;^dit to uvikr. Heai'clie.s, tin; aiiKUul.nctit which ^iv(!H the puhlie the ri^fht to inspect the hooks in ik ♦, to he (;oiiHtrued as int<;)*- I'crin;; with his J'i^ht, Imt merely ^ivcH the [»arty Hcarehin^ tlu! new rif^ht to iiiHfxiet each hook or inntrmn(!nt ai'tej- the Ke^istrai' han H(!|(>ct('d it as nilatin;^ to the tith;. The old statute, however, is open to a »ii(»re liheral constnicti'jn than that plactid u|)on it in WchHlc.r's (Jasr. The hooks are kept t'oi" the conv(rni(!nce and iidorniation of all intcjrested per- sons, who have an indisjjutahh; ri;^l»t to a knowledge (;f their contents ijpon payment ol' jiroper fees. AsHumin^ this rij^dit to (sxist, apart from the exprens Wf)rds of the statute, they have by the express words of the statute the additional riv<), or by misapprehension of their nature or eilect. The ixjlicy of the registry laws has Ijcen from time to time to increase the facilities for acquiring information iis to titles, and the enactmei.t which re(|uired all instru- ments to be registened at full length has been followed by one extending the etlect of registration and making it notice per se in all Courts. It is therefore submitted that Webster 8 Ciise does not express the law as declared b}' the ipresent Act. The danger of mutilation of the books by the public referred to in Webster s Cose, if it ever vas a valid reason for refusing inspection can no longer be so urged. The right undoubtedly exists to inspect all books other than the Index, and there is nothing to indicate that the Index is to be differently treated. The right also exists to inspect the original documents: and if the danger of mutilation was ever contemplated by the legislature they at least would have been withheld or their inspection placed under stringent regulations : for their loss would be irretrievable, while a mutilated Imoik could be replaced or restored by copies from the original instruments. (I) Per Robinson, C.J.. in I>ot d. McLean v. Manahan, 1 U. C R. at p. 498. (to) HarrUon v. Breya, 20 U. C. R. 324. It to the THE SEARCH. 70 7. TItfi set well. It is not unusual for solicitoi's to confine their search to the Abstract Index, satisfying themselves with the discovery of a continuous chain of title from name to name, and taking it for granted that every C(Miveyance is u conveyance in foe simple. Nothing is more hazai'dous than such a practice, and the failure to peruse each instru- ment as rejristered amounts to nothini; short of trross neirlijxence. The Registrar is not bound to enter in the Index tlie (operative words, the limitations of the estate, or the covenants, and without a knowlege of these matters the solicitor must necessarily be in almost entire ignorance of the title. In practice it will be found convenient when searching the Abstract Index to make a note of the registered number of each instrument which appears to affect the title ; and when all the numljers have Ijeen noted to commence read- ing .the instruments as copied in the books, striking ott each number as the instrument is read and noted or re- jected. When the instrument has been read there should be noted the following facts : — Date of instrument ; date of registration ; whether made in pursuance of any Act ; the recitals, if any ; the parties ; the consideration ; whether there is a receipt clause in the body of the deed (n) ; the operative words ; the words of limitation ; a description of the land ; the habendum ; the release of dower, if any ; and a memorandum of the covenants. If there are any special covenants or stipulations in the deed they should be copied in full. Note then whether the deed has been executed by all proper parties ; and if it has been registered by memo- rial, whether the memorial has been executed by the grantor or the grantee. If the purchaser has been fur- nished with a solicitor's abstract these matters will appear (n) See R. S. O. cap. 100, sec. G. See also R. S. O. 1877, cap. 109, sec. 1, sab-sec. 4, omitted from the revision of 1887, cap. 112. so UKUISTUATION. Upon it, ami it will 1)»' Hiitlicicnt to cxjuiiiiu" juul coinjmii' iln> outricH in the Ixtoks with tho ahHtruct. Hut if no ahstraet has hcou finnishecl t'lill uott'H shotild Ik; taken. If the iuHtiunieutu thus ah.stnu'ted do not make a complete chain of title, the Index .should he njriiin exatiiine*! and thci search continued initil all re^iijistenMl instruiuents have been foinid. In exauiiuinu" old deeds executed hy married women tin* certiticates I'udorsed up«)n them should he ciireftdly periised ; for the Act which w.:.-t intended to validate them excejits convevances with invalid ct'rtiticates whei-e the nuirrieil woniim or thttse claiujintif under her are in actual possession or enjoyment of th.) property (o), and a case recently arose in which the Act was held not to validate such a dc(Ml (p). The particulars of mechanics' liens, diHcharjjfes of mort- liiioes, nnd other instruments which derive their operation fron\ statv'.tes should be cai'efully noted to see that th^y comply with the reipiirements of the statutes \nider which they operate. And wills should ha carefully read with remird to the formalities attendin!"' execution in order to ascertain whether they comply in that respect with the law in force at the time of execution. And finally a search should be made in the alphabetical index to ascertain wdiether the parties wliose names appear on the title have made an}' conveyances which may not have been entered in the abstract index. 8. Notice; priorities. lender the present Registry Act questions of notice and its effect, and priority, arise in three different classes of cases, namely, (i) as between a registered claimant and a peraon dealing subsetjuently with the land ; (ii) as between peraons claiming under competing instruments capable of registra- (o) B. S. O. cap. 134, sec. 5. {p) Elliott V. Brown, 11 App. R. 228. IIKUISTKIIKI) AM> Sl'HSi;(^I'KNT CI.ArMANTS. 81 tion ; (iii) jih In'twiMiii a i-c^iHtnisl clHiiiimit and a [xthou claiming,' an (!(|uital»l(i iiiteroHt. (i) Riylsfrmi iiiul Hithsrfjiiu'iii chtiinojtJu. Srotioti iS!) providciH that " tlm rt'^iHtiation of any inHti'Uiiicnt, undor this Act, or any lortncc Act, Hhall con- Htitutc notice ol' the instrutncnt, to all pciiHcMJH claiming any intc^roHt in tlic lands Hnlwccjucnt to such rc^i.stration." This section |)i'cHn[)|)oscs tlic (fxistcnct! of •('^istcicn («), the (Jliancellor in deliveri(i(^ the judgment oF tlio Divisional Court att(!Tn[)ts to d(;tiact, to some (!.\t(!nt, t'roin tiie effect of notice by ref^istration as d(!clared by the Act, and settled by a series of decisions. He says, "The Uej^istry Act, which declares (sec. 80) that le^istration sliall constitute notice does not preclude in()uiry us to whether there was knowIed<^e in fact, and the Act itself (sec. 82) inakes the distinction between actual notice and the implied or imputed notice winch, in certain cases, Hows from I'egistration. I do nr«>nn' Hfnirl (t), UH to tlH> circct. ol' imticc l)v rrniHt.nition. It wmh always tluMvtororc held that notice was Hiillicit'iitly pfovcd Ity proving registration; nor «1(m'h tlic Coint oliscrvc tlic dis- tinction l)»'t\v«>on tlu' two nttcrly diHtinct claHW's of oiihcn pi'ovidod for l»y Hi'ctioiiH SO and .S2 (now scctionH H!) nml Dl") r»\s|M'ctiv«'ly ; and it is rrHpcctfnlly Hulmiittcd that tho nHO of the word "uctnMl" an (|nalifyin;,^ the notice r»M|nin'd undci* section Ul, (Ux'h not wan-ant the conchisioii that section S\), for want of it, may he held to tnak«' notice l>y r(\i]fiHtration constrnctive notice only. Kven if it were, the failure to search has het>n licld hy tht* (Niurt of Appeal (u) to chareje the pai'ty refraining; fi'otn searching; with the conHe(piences. as apiinst a claimant who has securecl his priority hy n\jjfistration. And the duty to seaich continues up to tlie moment of registration hy the party to he atlected (/•). Tl\e Act w!iich nuikes rejjfistration notice, is retrospec- tive, and makes all registrations notice whether etlected before or since the Act (ic)- It will he ohserved that re;;is- tration atlects with notice only those dealiner with the laml suhseipuMit to the re<;istration ; and it nti'ects thosc^ only who are acquiring interests in the land, not thost^ who are partiu}:^ with them (.r). And therefore, where a mort{j;ae>ee released a portion of flie mortjjjaged premises to the detri- ment of one who had, suhse(]uently to the mortj;a<;e, ]au- chosed a portion of the morteja{j^ed lands, it was held tliat registration of the conveyance to the purchaser was not notice to the mortgagee of his position, and relying on that alone he could not obtain any relief against the mortgagee (t) See dictum of Strong, J., in the Supreme Court, Gray v. CoughUn, 18 S. C. II. at p. 570. (m) Oilleland v. Wadsworth, 1 App. R. 82. (v) Alillar v. Smith, 23 C. P. 47. (tr) Vance v. Cummiugs, 13 Gr. 25. (.r) 2'. lO L. Co. V. S/wuJ, 16 Gr. 446 ; Gilleland v. M'adtworth, 1 App. B. at p. 91. cr.AIMANTH ITNMKIl f'nMlTri\f» INSTIM MKNTH. sn (If). Ndtici) \h rfU'ctlvr ir Imui^lit lioiiic to tin' |unx'liHHyr ftt Hiiy tinui Itrlom n-friHtnition of his convryuuco {z). (ii) (■ln.iiniintu inulrr mmpHimi i itHtriiinenfu. (a) Parc/KtHd'H. IhuU'v tli«i old rc;^nHt,ry Ihwh, it vvhh lirld tluit coiiHtruc- tivc notice of a prior niin-f^iHtrrt'il iiiHtninieiit capable of n'j;iHti'atioii was not HuHicirnt to poHtpoue a Hul»S(',(|uent ic^^nHtcnMl conveyance evpii tlion^di there waH poHHe.sRion tnitlei' the prior instrunient ((!n Hullicient in other vjiHiin to put the jiarty ac<|uir- \\\^ it on further iiKpiiiy was uniformly held not to lie Huch notice as hIiouM prevail aj^aiiiHt the re;^iHtered title (h). '{■he Huhse(|U('nt piu'chaH;)r niij^ht hav(! actual knowhid^o that tlie prior claimant had some title, yet Im; was not afl'ected if ]w was ignorant of the natun; of his title {<). The ri/^hts of competin;^ purchasers under tluj present law are n^j^ulated l»y sections 81 an«l 1)4 of 'J'/ic IhyiMrji Art, ISO.}. Jiy section «S4, " after any grant fn>m the Crown of lands in Ontario, and letters patent issued therefor, every instrument attecting the lands or any part thereof com- prised in tlu; grant shall he adjudged fraudulent and void against any suhsecjuen purchaser or mortgagee for valu- able consideration without actual notice, unless such instru- ment is registered, in the manner herein directed, before the registering of the instrument under which the subse(juent purchaser or mortgagee claims ; " and by section 94, " priority of registration shall prevail, unless before the prior registration, there has Vjeen actual notice of the (ij) Beck V. Moffatt, 17 Gr. GOl ; followinji T. it L. Co. v. Shaw, 16 Gr. 446. (z) Millar v. Smith, 23 C. P. 47 ; but see Sandemm v. Iturdett, 10 Gr. 119. (a) Soden v. Stevens, 1 Gr. 336 ; ilcCrumn v. Crawford, 9 Gr. 337 ; Waters v. Shade, 2 Gr. 457. (fc) Soden v. Stevens, 1 Gr. 348. (c) McCrumm v. Crawjord, 9 Gr. 337. H4 UEdlSTHATION'. prior iiistrunu'iit l)y the party oliiimin^^ umlfr tho prior ri'^MHtrutioii." Tilt' latter .scctioii j)n'su])pos»'M tlf exist«Mi('t> of two t'xocutcfl instniinentN in poinpttition with cacli other huforo re^nHti'ation, and dculs with the rinhts of parties claiiiiiii;^ under them after rei-istration of tin; one Hnl)He(|nent in ur- chaser with collusion with his j^rantor, or carelessness or neglect in himself («/). And tho opt'iation of the statute is to nuiko the prior deed, as a;^ainst the subset |Uent pur- chaser, fi'auilulont and voi(h and so to deprivo tho prior {grantee of his estate in so far as it is necessary to ;^ive ftdl etl'ect to the second conveyance. At connnon law, after a conveyance in fee sim[)le tho j^rantor has no estate left in him, and a siibsetiuent deed is therefore absolutely void and ciaiveys nothini^. But l)y the operation of the Registry Act tho second deed, which was wholly void as a convey- ance before registration, becomes by registration a good conveyance, and the first deed is (as regards tho second one) deemed fraudulent and void {e). In Dor tlvni. Major V. lieynolils {/) Robinson, C.J., said, "I consider tho oHect of the Re<;istry Act to be, that the deed wfiich is defeated by its provisions, is not merely to bo looked upon as fraudulent and void after the registry of tho subset [Uent conveyance, having been good and valid before ; but that it nuist be taken to have been fraudulent and void from the beginning, as a conveyance intended to bo kept secret, to deceive purchasers, and that no estate ever passed by it." That the principle of the Act is to treat the unregis- tered conveyance as fraudulent ah initio is true enough; (d) Waters v. Shade, 2 Gr. 482, 4^3, citing ll'arburton v. Loveland, 2 Dow & CI. 480. (e) Bruyere v. Kiwx, 8 C. P. 522, 523 ; Waters v. Shade, 2 Gr. 458. (/) 2 U. C. K. at p. 318. CLAIMANTS INDEK C<»MPETINmn v. Campbell, 14 Gr. 163. But a purchaser from the volunieor to >k a ^ood title ; Doe dem. Matlock V. Disher, 4 U. C. R. 14. (g) Richardson v, Annitaje, 18 Gr, 512. "•flU^WP^ flO IIEOISTUATION. (iii) W'lfisifurd (nvnci'H diul fH that "no (MpiitaMi^ lion, cliargo or intoivst artoctinfi' land Hhall Im^ (ItHMruMl valid in any Court in this Province, as a^ainut a rogiHtorod instrument exe- cuted by the same party, liis heirH or aHwignH." When the party having the prior ecjuity claimed under a title incapable of registration, it wan held, under tho old law, that constructive notice wjis sufficient to save it us against a subseipient registered purchaser (/<). Tho change in this respect, how*n'er, was made by the Act of 1H()5, and is continu'.Ml by the above section in tho present legislation. This section deals with an ecjuity as against a regis- tered instrun\ent ; and although its literal otrect is to avc>id all ecpiitablo intei'ests absolutely as against the registered title, it has been uniformly held that a party claiming under a registered instrument takoTi and registered with notice of a prior em v. Crawford, 9 Gr. 337 ; Grey v. Coucher, 15 Qr. 419; Moore v, Ihtnk of li. N. A.i 15 Gr. 308. (i) Forrexter v. Camjihell, 17 Gr. 379 ; Wiple v. Sitterington, 19 Gr. 512 ; Hank of Montn-al v. liaker, 9 Gr. 298 ; Peterkin v. McFarlane, 9 App. K. 429 ; S. C. suh-tiom., Hose v. Peterkin, 13 S. C. R. 677 ; and see White v. Neaylon, 11 App. Cas. 171. (j) Latouche v. Lord Dunsauy, 1 Sell. A L. at p. 159. (*) WigU V. Setteriugton, 19 Gr. 512 ; Bell v. Walker. 20 Gr. 558. ({) Cooley V. Smith, 40 U. C. B. 643 ; but see as to leaeeholds, antt, p. 66. (m) Sherbonneau v, Jeff$. 16 Gr. 674 ; Hollywood v. Waten, 6 Gr. 829. UFFENCKS !N CONNECTION WITH UEOISTIIATION. 91 9. OffrnccH in ermnection wiik rcfjiKtrdfion. lly The Cvmnvdl Code, tStK!, (n), every f)iie \h piiilty of an iiulictabUHiiUfnce, who, Jictiii^ either uh ]>riiicipal or a^etit, in any proceeding to obtain the rcffistration of any title to laud or otherwise, or in any trannaction relatinj^ to hind whicli iH, or is pi'oposed to he, put on the rej^dstiT, knowin/^ly iiiid with intent to deceive, niakeH or aHHiHtw, or join.s in, or is privy to the making of any niateiial falw; Htateiiuint or n'])reHentation, or HUp|)reHHeH, conceals, aHsistH or joins in, or is privy to the suppression, withhohlinff or concealing from any judge or registrar, or any person employed by or assisting th(? registrar, any material document, fact or matter of information. And hy TIh: I{>ylHfn/ Ad, IHO-J, sees. 02 and f).*i any ])erson (other than tlie Kegistrar, or otlier officer, when he is entitled l»y law so to do), who alters any of the books, reconls, plans or registered instruments in any nigistry office, or makes any memorandum, woi-ds .or figures in writing thereon, and wliether in pencil or ink, or by any othtr means, or in any way adds to or takes from the con- tents of such book, recoi'd, [)lan or registered instrument, or alters any instrument 'lapable of registration after delivery to the Registrar for registration, sfiall, on sum- mary conviction therefor, before a justice of tlie peace forfeit and pay a penalty of not less than five dollars, and not more than one hundi-ed dollars, beside the costs, and in default of payment thereof, he shall be imprisoned in the county gaol of the county in which the offence was com- mitted for a period of not less than three months, to be kept at hard labour in the discretion of the convicting justice. (n) Sec. 371. 02 VFHirn-\TfMV mF TUF, AUSTHArT. MUM 1<\TH»X i»K rilF \HSTn\(|': I'HIMAIIV IVI l»KN< K. 1. Pvi*ilnrlu*n i*f*hf'ils { i \ M'Otii/tlifttf hi this. (i) \feiuitrittlff. (ii* iWtl.t rrtfisfi'fiJ ,it full huiifh. {\i\\ iVHi tit't f ♦*» >i » if'M. 'A /■-'.(•# «'m/i. luridils, i-it\, JO tfcD'n ohl. (> M inrrlliinrifufi. Whon M pvvl titlo lias 1t««»>M shown Ity tli" nl>Mlract/, ii is tho «iii' (lu» variotis stntvnicntH hikI iniiilcrH rnii (AJniMl in it. riiis is onlh'il V('riryini»' tin' iiliHtniot/, (in<>(l,s, dcolarationH an«vssiblo tluit a purchaser inij^ht l>o convpollod to complete a contract upon ovidenco which would nt>t enable him to recover the estate in an adverse Action ajjainst a hostile pti-fy in possession () 7.\- i/.;;;;*')*. ly Gr. at p. 310. (;i| Lee Abst. iiu. {q\ Lee Ab»t. 23. I'liniMUTiMN or KKium. 98 It, IH hii(< Miaf, l>y Mif Vitnlnr tniil I'n rr/itiurr /1<7, hic, 2, il JM «>niir(.) wliicli, liy hHcntf'(|. im t.o it.H «|nn,lil,y /umI vvi' ^\vi'n niiil«'C odili in nn /u'tjon (r), 'I'Ihih,!!, t.itJ*' liy |»oMH»'HMion luny lie Miilli -ipnlly |uov«'i| l»y Htn,t,nl.o(y dcrl/uMt.ioriM ; Knt. if t.lio |ini<'li)i.M<'r in rc,HW(| in t.fio Hiww woiwIm mh t.lic oiind to al»Mt.ra,('t, nil t.lir dfcrJH inat(!rial t/» tJi*: tifcN;, ttionj^h they may not lie in tiin poHHCHHion (n), ho Im; in tx^und to prodiKM! tlio, dcmJH n,Jfclion^li tJicy iirc not in tiin f>oMH<;HHion, and tiion^^li tli<; purt^liaHcr niay not \n; ♦■.ntitl';d to th(Mn on coiiipjntion (/), and in hoinid alno to ^ve pri/m/i, ffir/i/' f(I of (he (MintiJM'Hr) It »I»m'm not rollow Mini, llio vcnilcir vtiinioi provo liis iitli> lu'iMittMc li<> Iiiim not in Iii,>4 itoMMCMMJuii nil (ho (IociIh U(MM>N,sM.ry \'or i\u\i |mij>t»M(». In onlor (o »l(>|»ri\(. tln' pin«'l»MMi»mIh |Iii> iiiost. oloar mikI uniiinliif^unus «'oiiili(,ion is iu««M'HH/i.rv. in tSoufhln/ V. 11 lift {ir) llio purcliHHor litnij^Jil, mitl«>i' Mic folJiiNvinj;' I'omlilioii : " TIip viMidor will (Iclivci- ii|» all the (illt» tltMMls and citpipH of il |,(» pt-odiicK unv oriiiinal doctlM or otlicr ilo«Mnni'ny wliio.li ilio \(«ndoi' nndcrtook lo •lodnotMi j;ood tillc. It. was ar;j;ntM| that the woimI "pro dnov' " ha.d a. n>on< ntMicrai nioanln;;; tlia.n "dtdivnr," ami that it was ijjtt'nd(>d to apply to pi'odnction I'or tlio pin- |H)s«' of provinu,' tht' alislract and not to prodnction only for tho purpose of d«di\(M'y. hut on tin* contlict «)!' con- «Htions it was hold that, tho p\n't'ha.s(>r was not hound to con\i>loto his contract until a. good tith< had hcon proved, oithei' hy the production of th" (IcmmIh prol'ossed to he ahstrai'tivl. or hv such other evidence^ as would satiHl'ac- torily prove th(» statements in the ahstract to be correct, alth*»Uiih he inij^ht not he entitled to delivei-y of the (ku'ds on completion {.v). If the original deeds cannot he produced the piu'chaser may retpuro the veutlor to produce copies of n^gistei-ed instnnuents certitied hy the registrar (//). Hut unless tho purcha.sor consents to accejit certitied copies they would, in the absence of sti[mlation, bo insutHcient to verify tlu! abstract. (f) liryunt v. lia-^k, 1 llua. 1 ; lii'mj v. Yoinuj, 2 Esn, G40 n. Material charjjos in this respect have been nuido by tbo Voiuior u .d Piirohaser Act which will bo presently noticed, postca, p. 100 et teq. (ir) 2 M. il- Cr. '207. (x) See remarks on this case in Mcintosh v. Rogen, 14 Ont, B. at p. 100. (y) Re Bobicr v. Ont. Inv. Ass'n, 16 Ont. R.259. I'II(>{hm;ti(»n <*v i»I';ki»m. ur, 'I'lir vriidnr, it) ii(l)lit>ioii (o prtMliMMti^ ilin dfi'dH, iniiHt hIiow Miat tlM\y Imvr l»r«in n'^iHttm'tl, hh wiMioid, ri'^nwt.ni- iidii lio cntiiiol,, HH wn liuvo H(Miri, niiiki^ nut n ^o(m| t.itl«^ And HO, wIhmi ii. ronv^'y/iiuMi wan |n(idiic^iMt,(^iHirar (n hut has a covenant to produc«! thcun, Ims inuHtohtain production for the purchaser ; for the, holder of the deeds rrii^ht refuse to show theuj to the purchaHer applyinj^ alone; (h). Attention uiuHt now bo iil or ollici" powri'M icImI in^" to IiiihIn. iniiy l><> (li«|HiMi(( n ilocnintMit. Iimm Imm'H ro)4is((»r(M|, or in wliicli (lii> liiinl lies if lli(> ilocnnunt liMN not 1mm>i\ r(';j,iN((«r(M| I'roNi.sion iHinmlc Tor noliryiiii^ nny o(l\i>r Ht'mislrni' il" llir tlocinncntH inclittlr oilier ImikIm I'jton ilonoMii . iniy jxT'on slmll lie ( iIocniiii'iiiM iirr nol lo he (Iccninl rc^^is WvvA l)y \('Mson ol' I he i|(>|>osil, nor mi'c II\(> iidiniMNiltilily or valnt' oT lilt' tlofinut nis mm cn iilrnco lo \u> (Iccnicd ini|)ro\ril or nUtTlt'd Ity the di-po-dl. riuM'irrcl of llic dt<|ioHil is di'clnrcd Ity seel ion I I, wliit'li is MS follows : " 'riu> dt>))osil of m docunicnt. undt'r tlic pro- visions ol" ihis Act. sIimII, wlnle llic smiuc conlinucs so doposih'd, l»t> dct'iiii'd ;\ siillicicnl fttnipliMiifc with, nnd I'nl- tilnnMit of. Mny covcn.uil or M;;r.M'iiitMil llicrcioforc (^ntcrctl into liy Miiy person to product" or mHow the inspection of tlu» docinnenl. o\- ihe innkin^' of Mny cop_\' of or cxtrncl. from th(> sMnic, Mud sIimII mIisoIvc Mny pei'son liahlc foi* the pnuluction or custody thereof from ;uiy further liMhility in ro8pcct «>f siH'h ciistody or production. ' In onh'r to make the Act MppHcnl>K>. then, il seems that tlu'rc must he (I) ii covonant or aureemeut to produce or allow the inspection of. or the makiui^' itf a eojty o\'. a tlocument; (2) a deposit matle after tlu' co\ enant or a>;reement. The deposit is then a ilisohari;v or fullil.uent o\' the covenant. Thus, if a vendor, who owns U>ts 1.2 and o under the same title, sells lot 1, and retains the deeds, giving' a covenant to produce them to his purchaser, he dischar<;'t's himself from any lia- bility on the covenant by depositino- tbo deeds under the Act. But if he subseiiuontly sells lot 2 without protecting' himself, the purchaser can ret pure tlie production of the deeds in the usual war, for two reasons, tirst because the I'MMliI* T|n\ «»K IH:KI>H. 07 Act' m tint ii|i|M>iir to iii(*l(i noricctl Mmt, Mh* dfpoHit ih II MMiiMl'iicI ion only of uii ii.iil.r«'(<|('iit. covi'tiHiit, or nirnu'inriit. Kvcii if Mie roiiclinlini^ rlniiHr ol' {.\tr Hccliori ('(niM lie t,or- tiiroj into H coimlriirl ion which woiiM cniiMf t,lM> vfiitlor i.n (|(|)uHil, tin* •IoimiiiiciiIh in Mir irjriHtiy ollicc in I'nJtiitiicnt. of* lii'< ol)li;^atioii ( ,lMil(^rt> |||||m(. Im> MilliMiinl (li HimI Hit' MpplicMMl Uoulil, Itlli I'm- Mn> )ti>|HiMi(, Im« Mnltly rnlillt'il l<> lilt' |uiMHi>4Miitii nl' Mm< iIim'imihmiI. midI ('.?) Mini llii> «h>)»oHil WMH luiulo \villntnl Iiif4 i'umhpiiI. of Ilit> rntiMi'Mi. nl' mhv |MM'Mon <>nli(li><| III ilit> liinr nl' (Ih< t|i>|M)Mii. in Mt^- inft'icMl Mi(>t'( willnii lliis |wu'l nl' lln> iii(. TIip nri;>innl (Irpnfiiiitt', lioinir nixltM' n i|inMit, lii> Nnl(>|y tMililh'tJ. Mild Htt williiii Mii' HtM'linn, lull I'nr llic Mcrniiij r<>i|\iirtMUt>nl. lie is m rnuMt'tilin^' jimiI y In ili<< t|o|inMili, iumI (horcrnro im excluded hy IIm> Hcrniid rt'i|iiir«MiM«iit. Ami innsimu'li IIS It r»t\«Minnl In prndnco is iicxrr j;iv«'ii •'xct|i|, when Nt'vcrid nwiHMs nl' HcpMnilc piiriM iirr inlriTHtcd in (lu> diM'ds. nno t'Mii linnlly cniircivt* nl' m. niH<« rnJIiii^ wiMiiii tho lirsl it'ipiiromcnl. nnlcsN il !»> llic niso nl' n piirclwmir wlin h',\H snhstMUH'Mlly Mt't|nirod nil llu> IntidH d<'ncrilM>d in Mu' diMMJM, Mild doMJros in liiillj^ MlciM itil.n IiIh nWM (MIHlndy, or (lu» |>nn'l\Ms('rnr Ilu» Inst pnr»vl nl' Innd divided iiiin |»Mr cols Jind sold. >vlin iMi;;!^. ItocniiH' (Mliitlcd in tlin Hnic iMlsl ody. WluMH' iho dnouiiMMil n'lnt»>M In nMi( that th»MV aiv rt'jisnnMl)ly inijxnlinit j^rnuiidH I'nr rc- ihovitiii' tho domnuontu li*oim tho cuHtody nl' tho Ko^iHtmr. Whoro tl\o tloods aro in tho handH of a inort^i^oo, if tluMuortgJViio wjus uuuio nn or hoforo tho Ist July, l«S(S(j {il), thf* luortga^oo cannot ho conipoUod (unU'HH lio has hoiiinl hinisolf in sonio way hy conaont) to alK)w tlioni to ho insjvctod, thoujjh an asai<:fneo of tho C(|uity of redemption ortei's to imy tho intoivst if shown the niortj^a^o deed {(•), (d) See 4i) Vict. cap. 20 ; now R. S. O. cap. 102, see. 8. (t) liromie v. Lockhart, 10 Siiu. 421. Ill'.f OlIliH. 09 nr cvi'ii il' Im' in (i,'ili| I'mi Mmmm I'mi- Mh' |tiM'|)'(Mf> »if \>ny\mf liiiM nil" in lull ( / > , MMC will ln' li(< ciiiiikII*''! Jo ijr(i|r«'»i iiHImI. Ill' |iiii)| III! Iii'l'iil'i' III' ciiii III' coMilii'lli'il in hIi'iW Mim i|ri'i|M(A) III I'lilili V. ir«0'/ f /) il, wiiH Miiiij Mini, Uh- iiiIo tjiM'M mil. <«xlr"riil In III!' iii'ii (^M|;i' ili'fij it.Kcir, hill, UiiM r»m(, liii'' iiol' lii'tn rollovvi'il ( /) lliil, Ity Mil' f'luii'rifn nri mf A'f. (if ISSn, Hi'rliuii M, now |{ S () r/i|i. |(»'2, hi f. .'{, vcmlor c/uinol, )iro(|tif',(i Mh! ori^inn,! iriHiruffi'iniH, iiH ill Mm cMMn ol' wills mimI rcronlH, Im civwuti n-'iuin; Mio IMMTliiiHcr l,o Hi'ml l,o MiP viuioiiH olliri'H l,<» j'XJirriin*', \]\h ifconlH (Mill coiniKirM Mm (i,liHl,r»ir,l, wiMi Mirni, cviin tlionj^'h III' i.s willing to piiy tlm «'.x|i('nHM ol' Mm* aiicri'lnriffH ; l>iit, li<; iimut |»ro('iirr oirn'i', coiiicH or »'xtrm!tH, >i,h Mh; cmw. rnay r('(|nirn, in orilur to «'nal»lii tlm [»nn',|i>i,H<-.r'H Molifritor t/> (^xalllin(^ tlm uliHtnwtt with tlmni, ami il' rili'!H, U-infj iocohIh Ol" in thi! nutiirn of niconls, an; firifjH ari'l rr;cov- (/) lUiuicr V. I.itrd I'ortnrliniiton, ir» Hirn. HHO. iy) Atldinon v. U'nlkcr, I Y. . IJut Her fKe»( o/ Ewjland, etc., Hank v. NickolU, Ch. D. 613 ; i'/uHt;M v. Ava».i, 2 Y. & C. C. C. 047. (k) Bug. 481; Dart. V. & P. Cth Ed. 472. 100 VEHIKICATION OF TIIK AHST|{ACT. erioH, procoodiniTH in (JaurtM of ]mw <>i' K(|uily, or f)tli). And so, a rej^istered statutory dischari^o of mort^a^'e which derives its operation solely from nuistration is probably a record as the term is under- stood by conveyancers. And !i,s to all such the vendor verities the abstract by piv^ducin;^' certified copi(>s (7). But where a deed is produced without sIk^wIu;^ a certificati; of registrauou thereon, the vendor cannot recpiire tin; purchaser to examine it wioh the registration to establish its identity, but must himself prove the registration, or produce a certified copy from the registry office (r). (i) MemorifUs. Before the Vendor and Purchaser Act («) it was held that memorials of registered deeds were not records, ami therefore that the deeds must be produced or attested (/) Lee Abs. 373. And see Gov. Con. Ev. 121. (m) Sn^. 44S. (u) Dart. V. & P. 5th Ed. 077. See also 9 Jarm. Conv. by S. 1. (0) Su^. ii'y. And see Moulton v. Edmonds, 2 D, F, & J. at p. 24'.). {p) Cooper V. Emery, 1 Ph. 388 ; Campbell v. Campbell, Sut;. 449. {q) Cooper v. Emery, 1 Ph. 390 ; and see Leighton v. Leighton, 1 Str, 210. (r) Mclnto^n v. Rogers, 12 P. R. 389. («) R. S. O. cap. 112. .mi:mmi:f.\i,s. 101 1. 24'.». I, ;, 1 Str. copies funiiHlMMl .to tlit* |nirclia.s«.'i" (/). TIm' nieiiiorial.s tliriiiHolvc'H wero at IxfHt Imt Hccoii'lary »;vit)SHe.sHion has heen consiste'nt with the re^^istered title. It is the duty of the Ur-^dstrar to ^ive cej-tiHed cie Registrar (e) ; it is, ov should be, possible there, fore for the vendor to gi\e better evidence than a certitiod copy, and if the original cannot be produced by the vendor its absence should be accounted for before a certified cojty is admitted. The fact that the duplicate original in the custody of the Registrar is as good evidence as that part which the vendor should have does not aid him ; for, as we have seen, the purchaser is not bound to visit the public offices for the purpose of verifying the abstract ( /'). (iii) Certified copies. The provisions of the Registry and Evidence Acts relating to certified copies, however, must not be over- looked, and it may be that certified coj^ies are primuiy evidence of tiie deeds, and as .such admissible in evidence without accounting for the originals. By the Registry Act {g) a copy of a registered instrument certified by the Registrar is to be received as prima facie evidence of the original " in the same manner and with the same efi'ect as if the original thereof was produced." If this enactment stood alone the certified copies of deeds would be primary evidence of the deeds, and would be admitted to verify the abstract without any account being given of the original deeds. What is admissible in an action is a fortiori admissible between vendor and purchaser (A). But by section 45 of the Evidence Act it is enacted that " in any action at law or suit in Equity, where, but for this Act or the Registry Act it would be necessary to produce (e) See R. S. O. cap. 114, sec. 57, amended by 52 Vict. cap. 19, sec. 5, 8ub-sec. 'd. (/) And see liarr v. Doan, 45 U. C. R. 498, where it is said that as against the vendor there is no legal obligation to search the register ac all. {g) R. S. O. cap. 114, sec. 24 ; see also R. 8. O. cap. Ul, sec. 43. (h) Lee Abs. 267. See and compare R. S. O. cap. 112, sec. 2. CERTIFIED COI'IES. 105 and prove any original instrument vvliieh Iuih lieen regis- tered in order to estal)lish such instrununit and tlie con- tents thereof the party intending to prove any such original instrument may give notice to the opposite party ten days at least before the trial, or other proceeding in which the said proof is intended to 1)e at)\vt>r mI' nHtniiPV ^iN<'n I'ltr \nl»inl»l»> cniiHiilrnifiuii iv iln' tlcnlli ol' Mip niHHlilucul ( *•) ; l»iil, wlnMc l)\tMt> is no *. ..ItiMlilt' coMMiiltM-Mlion, I he power iniiy li(> K'voKrd n< nny \\\\n\ \U' 1Ih> Act. 5J!I \"\v\. onp '2M, Hcr. y.'l ^vV ir M pMwcr of ntloriii'v pr pcrHoii cmmmiI in^ IIm' smjuc, <»r pi-o\i(|(>M l»y mmv ronn nl' wnriln tlinl il. .shnll not I>(' rt'\«»K(>(| Ity Ihc tlcnlh ol' |,|h' piM'Hoii rxrciil inj^- ih(» smnc. sufli pi-oxiHinn hIoiII Im* cH'ci'lunl. IT tJierc is no .snoh provisioii in n )»i»\V(M' oI' nllttincy every ptiyment nimle juul Mi'l ilotie \n»tUM- (lie power nl'ler Hie deiiMi ol' llieeon .sti(»)en( or jil'ter Notne ne< done Ity liini to uMtid (lie power is vMJid MS respects eNcry person pnrty lo sneli pnynieni. or .•H'l io wl\on> M)e I'nei ol' llie denlli or ol' ll-e doine ol' sneii .•lel WMs \\o{ known ni i\w lime (liereoT, nnd ns respeeis nil olninunii' \nuler tlieni; (he ae( or pjiytneni innsi liilve lieen ne or n>i>de in iX^^yA \';\\i\\ {I). ' W (lie power wiis ^i\en foi- v.'ilnahle eonsiderM(ion in ejis«>s willionl. (lie v\e(., prctol' .shvudd W ^ixiM) (Iim( (lie eons(itnen( wmh ali\(» txi the (iiiie <>f the t»x«Mvise of the powei- {u) : in e}is(>s within the Aet, that the dt^nor was aliv(\ or (hat tin* act. done nmler tho power was done in i;;noranoe oi' (he death of (he i"ons(i(,nent, iinU^ss it is jMovided l»y the power that it may Im> exercised after tlio d»N»th of the constituent. 11' the powtM- was with- o\it oonsiderati«>n. impiiry should be madi> \vhether it wan ivvoked prior to itw exercise (r); and in oases within the Act. whether tho act done under it was done in i^noranoo of tho d^vith of the constituent or of any act done l>y him to avoid it, unless it is exeroisahle after death {n^). (>■) Snuirt V. S,j «(/<•»>•. A C. B. U17, n.; 3 J. & L. C03, lU3. («) R. S. O. cftp. 4)7, sfo. 7. (t) U. S. O. cup. 1)7, sec. '2. («) Dart V. it V. 5tli Ed. 311. (»•) Dart V. .t P. 5th Ed. 311. (It) 3-\ir remarks uix>n tliis legislation seo Waiters R. P. Stat. p. 303. llK<'rT/\l,H TWKNIV VIIAItH 0|,(i. I Oil 5, lifiitiiln^ cir , .'(I If I'll I'M ii/il. Ifi'cilnlH, ulnli'Mit'iif.H iitiil f|i'H«'ii|i(,i(»rm ol' fiirlH, iiinM.fiH iitiil |»nrti<'M ('(iiilniiK'tl in dt'CflH, iiiHlrtimfiitM, A»'f,H of I'lulin,- mi'iil. Of Hfniiil.nry (h'rldf/iiioiiH t.vvriif.y ymVH oM iit, tlio diilt' ul' Mm' CMiil.r/M'l, Mif, iMilcHH Mii'l rxr'i'|it, HO \'nv IIH fjM'V iii'i< |uu\t'ii('<' ol' tJir f/iiiMi i»r HiK'li r»i,r(,n, Mi/iMcrM (ui'l 'IcMcripiiorm (.» ). In llnlhiil V. Liilliliill Si'/iDid ItiHll'il. (i/) it, WMK lic|(| tJwii n iM'cilnJ in n, (Ici-'l tvvonf.y y^at'H oM Mi/i.l, Mm'. ^rnritor \v(iH Ht'iHcil in I'cf' Hiinplf wmh not m, rccit/il ol' u ronclii- niun of Imw Itnl- ii, rcritd,! ol' m. I'nrt, or uiiitifv within tfio niciiiiin^; of Mm^ Hliitnl.*-, M,n vcfmIoc n*"*'! not, |iio\(>, or I'vcn n\iHlvi\r\,, Mi\' hm.Io ol" m, lik*- fli;i,ni(',t-<',r liii.vn Im'cii conHtiiHMl niiiy I'lMninli n key t,oUi<' conHirncfJon of iJiin ("iKM'l.nH'nt. VViMi n-Hpcci, in corKlitioriM rnakinc/ rt'('it,iilH conrlnHivn <'vii\,crH rccit,*-'! it. lijiH l)('(in «l(»ulii('i> cvidonco of the ['twin ati pnfont «'ir»'ct iliaii t\w Haiim wonh woiiM liav(> in aiiutluM" roriii ul' tcHtimouy. "TIim proper roust riu'tJoii of a comlitioii iMakiii;^; rrritais rvitlciM'o of (ho facts ami inaiicrs iTcitctI winild srcm to he, that thf n'citals nuist state iMcry I'act and matter which, in t.h(< ahsiMioe of such a condition, connsel inlvisinj; on the title wt)tild r('(|uin> to he stated on tJie nlistriict. and t.o l)e pi'oveij in ordiM* to enahle him to diaw the reipiired conclnsion " {a). It. is Mtihmitt.ed that, the Act shonid he constrned in the sanu* wa.v. It nn>relv creates a new specit's ol' t^^sti- monv, and n\akes that evidence which hefon^ was inadmis- .sil>l(> ; hnt it. does not create a species of testimony of so hieh a charactei" that it is unnecessary to hIiow tlu^ manner in which conclusions are arrived at. If the recitals are such that, if tlu'V weie statements contained in statutory declarations tln>y woidd he suHici(Mit proof of tho facts required by the a.l>stract to he j)roviMl, they ar(» evidence which is hindin«x on the purchaser. If they are moro con- clusions of such a nature that, if they wcro contained in st^itiitoiy declarations, they would not 1)0 accepted as sutViciont pr«>of without disclosinu^ tho facts upon which they are foinidcd, thou it is submitted that tho [lurchaser is not bound by thom (/»). Whon a rotjistored convoyanco acknowledged payment of the consideration money, such acknowledgment was sutti- ciout ovidonco of payment, except so far as it was proved to be inaccurate under the Vendor and Purchaser Act (c). (d) 9 Janu.byS. 4. {b) Compare the rule as to presumptions, Emery v. Crocock, 6 Mad. ^4. See ante p. 34, et xeq. (c) R. S. O. (1877), cap. 109, sec. 1, sub-sec. 4. MINCKI.r.ANKol'H. Ill 'I'lir cluUHn (Mititiiiiiiii^ tIliM |ii'ovisii)ti wiiM ((iiiit.i)'il I'luni till! rii rrccipt for ciiiiHiilrniliun iiKuicy ov Hi-ciirit-it-H (■ iiitiiiiKMi ill Uii< lioily of H coiivryniicc jh n nwiWnout i\\:\- cliiirj^'r i(» Mic pi^rHoii |iiiyin^f or tlrlivirin;^ tlm hjuih', without Miiy furUicr iTccipl, licin^ riHJorHt'd on flu- r(»ii\'ry/iiic(! urid is in I'livoiir <»!' a Hiil»Hr(mciit purcliaHrr ii(»t, liiivini^ any iiot/ic<' Miat tlir inoiM'y or ollirr ('onsi\ OF T;IK AUSTIIACT. or sccrctiirv uikIci* liis lmn«l uml tli<» hchI of the corponitifiii without, prool' '>r the Hnil (n* Ni;jiiiit»ir«' (A ). A R«'|^i.stnir'H altsinu't is not ji in t'vidoneo iiiuUm' tliJH Acfc (/). Hooks Hnt> proved liy examined copies or ('xtractH. or l>y co[»ios or extracts certi- ii«'(| l>y the piopcr custotlian (,/). ('oj)i('s of rt'corils, tlocunientH, liooks, or papers Itelonj^in;^' to. or (lepositcil, in the Crown Lamls Department, attestcil mider the sij^jjMtni'e of the (^)nnniHsioner or Assistant- C'omjuissioner, are eompetcnt evidence \vhen» the ori^nnals would he received in evichiice (/■'). A certiHiMl copy of a j>!itent is not pi"imary eviflcnce, hccausc; it is hut a copy of the copy entered in the hooiroot' ()ii)\ and the seals of the Cj)urts do not ro-istered by a notary (o). (It) R. S. 0. cap. C.l, sec. 2.S. (/) Humble V. Mi'Iuiy, 7 C. P. 319. U) l\. S. O. cap. (11, sec. 2."). (k) R. S. O. cap. 24, sec. 45 ; Nicholson v. Page, 27 U, C. R, 318. (I) Prince v. McLean, 17 U. C. R. 463. (m) R. S. O. cap. Gl, sec. 27. (n) Dart V. & P. Cth Ed. 316, 359. And see Con. Rule, 583. (o) R. B. O. cap. 51, sec. 29. MIS( KM.ANKnrs. iin I'liti'iitH nr*' pi'ovfil l»y tin- n'i^^iiuils, or Ity rxcinplifica- tiuiiH without juuroimtinj,^ \'ov i\ui iioii-pnxhictiou ol' tlio (iii^niHilM (/>) ; Imt it wmy Im Hiiflicinit for tlu; vrinlor jiicrcly to rrU'V thr ))Ui('liiiHcr to tlir |Mil)lifi n^conl ol' tlin joitctit ill i\u' I'roviiiriiil oHicr (7). A Kc^riHtmiH Hlmtnict rct'crriii;^ to a putciiit in not <'viiin. {\) Ii II' if Ills. "2. rriSKiiijtlioiin. [\) T/iilhJs ritf/illi/ ifoih' — Ih'i'i/s. (ii) /ill II I ill/ of /K'I'SOIIK. (iii) (^(liriids ami ofliriii/ iirln, (i\ ) l,ih\ ili'itl/i Olid fill fviroi'sliip. (\ ) W'oiiu'ii jhiHl cJiilil luovimj, (vi) /.I'lfihiiiorif ami nut n'iiujv.. (vii) Siilishirliini of iiiorh/diii's. (viii) Misirllo iiroiis. I. Si'i'oniliii'if (•rii/nirr. Wo h.'ivo St I'M that wIumv the vemlor has i\()t the dcrds it) his possossit)!! oi" power, the r(^;^ist,cr«Ml nuMuorials of tliosi' whii'li havo hoon so ro<;istiMV(l two primary evifh'iicc of tho (h'lMls if sio;iu>tl l»y the sjjraiitor, or in othor cases if pt>ssossion has been ct)iisistent with the rejifistcu'ed title. Hut wheiv possession has not biMMi consistt^nt with tlic roijisteivil title ami the memorials iire not Hi^j^nod by the grantors, the orio^inal deeds must be produced or tlieir absence accounted for and secondary ovidence given. i,(»ss nil iiKsTnrrridN or ih;i*,i»h. 117 \Vln'l'«i may luivn to Ih- (^iv»!ii. (i) LiiHH ni' ill hI fiiii nnl nf ilrfiln_ 'I'o IIk' ntJiniHuioii «»!' h< ('Kii'lary cviiliMicf pr'jol' (»!' tlio IdSH or <|(>Htnir,i,iou ol' tJm ori;^riiial e UH«;e»:n ultandcjned or triiatedas useless, so as to increase, the proha- hility of its loss or «lestru(!tion, or if the i)arty could not have any intiuisst in keepin}.^ it hack, or if the facts raise a jirohahility of its di^struction (I) a much less strict search (i) Cov. Con. Ev. 312. 0) Doe li. Vailwirk v. U'hitmmh, fi Kx. at p. m) ; 4 H. L. C». 431 ; Ileltell, H Ch. Cli. -211 ; Annlnj v. tfm.. 14 C. P. »7l. {k) OonloHV. Mi'l'hail, U IJ. (J. U. \H\ ; He Bell, 3 Ch. Ch. 241. (/) Fergumn v. Freeman, 27 Gr. 211. lis \ r.mi KAiioN or iiii.; ,\n.srnA«T. wouM Itc ncocMHMry t.«t Irt in Mi'«y>mliirv <'vI«1«mioo nl' '\{h run i»MilM (»)). Tht' poinl original inH(rntni>n(> ( » ). It nnist In' I'tMnMikcd. Ii(»\v<»v(«r, Mini nntlor onr nyni I'll! ol' n>fiisJrMlioii n »l»<|)OMi< ol' lillc (IcciIh ^iv^H hnt n. nlifrlil, Htvnritv anti is in conNDpnMMM' r»H(>ly nu'i wiM« ; nnn nitxlo nn vvonM Im« pio- i»'«Mvil. hj«l<'(M| (he purchdHpr nuiy, il' lu» cIiuohc. \v\y npnii (lu> ro^istonvl (i(l<> nlono, mid is nol, ItonntI to inHiHi n|)nii (ho pn^lnotion ^A' l\\o iUHH\H (o) INhicli Ichh rvidcnro nf a somvh niMv Ihcrrrorc 1m> s«j(lici(>n<. to l«>t in Hcrontlaiy o\i«l(MU'o than in a. sitnilar oasi' nixlci' I'ln^i^liNh hiw. rar(i<\s NoaiH'hini; lor a. niiH.sin^ (!«»«•(! shonM rcincnilicr (hat (he jXTson cntillod t,o t.h<< tii'st. innn('iliai«» K'^ai cHtalo of fnM'hoM is cntitlol to retain th«» titio (Ih aa a/^ainsi thos<> cut it led in iHMiiaindiM' or n'V«M'sion, ami (ho (IctMJ.s an> |u>»sun>oil io follow th«» title and jj^o into tin* ouHt.ody of thos<» entitled (/>). The presinnntion thai the dt'eds follow (he title may ho destroyed, as. for instance, by thi» fact that thev eov(>red othi>r laiids retained hv tl'o V(>ndor, or that sonii' piior owner on sale of a portion ^avo a covenant to pn>dllC<' tluMM (<]). \VluM\ lands descetid to real repri'sentatives, tlu^y ami not the i>erso»\al represiMitatives, an' (M»titN>d to the deeds, r thonirh for greater certainty a .search with the ]att(>r would Ik» atlvisahle. especially in the cjise «)f a missing n>ort;jjatjj«' {r). Trust estates het\>re T/ir Ihiutlntion of h'stdtcs Ad (m) Cov. Con. I.v. ;U'2 ; lirutt v. Lve, 7 C. V. 283. l«) Cov. Con Kv. ai3. <7rfi|M'('l,iii^ iiilMMiliuic*' («). |I|MHi MiP flt'nili of ri, Itiuf IjiihI.cc of nny rorporc/il or iiicnrporrjil li(>r«'i|it,M,in( l,o lijiif, of hiicIi l.riiMicf (I). Wficrn nnv |M'r4oii Iihm <'iit(>nMl iiil.o a ronf.riM't, in wrifint^ for Mio Hiilf mimI i'oiiV(>yn.nrn of ri-iil rH(,at.<', atnl \\iih (|ii,tM III' uil.ltoiif, prov'nliiii^ l>y will for l.lm convfyniM'*^ of Mim IiIIhI. tlnMI if Mh' t,|i(« »'xt"»'iit,or, HilminiHt.r'/i.l.or, or (MlminiHf.nilor with Mn> will atmoxrd hIimJI mal<<^ Mm- fotiv(iy»i,ri(r«s (ii,) Arwl ill Home oMirr rjiHCH ( /') tin' |M-rMonal r«'|»r<'Hf'ritat,ivf. iiifiy Hcll and coiivt'y. I'.y 'I'/ii' Ih-iuil iil iini. of /'jHlnIrn Ad, JHSf), IIh' real pi*<»|n'rl.y of n,riy our. volv('H npon tin' lc;^r(i| pcrHonal icprpHcntatjvH IVuiii tim*^ t-o ♦imc (/"). In rnncH undrr- Uhh Act, hi'iivc)] for (IimmIh hIhmiM l»n niJul«i with tlm p(!rH'»n»i.l n-prr^HpniaiiviM. I'.y III*' Art-H of fil. VicL cap. \H, and r>«; Vict. cap. '20, tJMJ land vcHtH in the licncficMaricH, uidcHs a caution in rc^intcrcd Ity tlni pcrsfnial rcprcHcntativo v» ,y,:i'\u a year from the, d«!ath (»f the owner, or in caH«'H under the latter Act Huch further time aH may he cotiHente*! t«» or allowe.d hy the court or ollicial guardian ; and following the devolution of the »'stat(! luider thcHe A(;tH, Hearf*!' hIiouM he made, with each person in whom the cHtate tni^ht vest, hearin;^ in mind the rule that the deeds are pniHumed to follow the tsses.sion of the party who denires to ;^ive .secondary evidence of its contents, the j)roper course is that he should («) U. S. O. cap. I OH, nee. 10. (/) U. H. C). cap. 110, HOC. I\. "Dio aection (1o"h not apply oxprcBHly to inte^itack'B only. Hc«5 He I'illitiij'ii Trunin, 2f) VA\. \). 43'2. (u) 11, 8. O. cap. 110, HOC. 2(; (r) 11. 8. O. cap. 110, hcch. 10 to 28. [w) 4 inin»'\nM\ iti I Ml.; \i, Ml n \i i Hl>/« ii'h «i|l| fi tviliif>sH. iiixl (lull Iht' M<"irt'h iilMMihl OitMiinrd''!. iiii'l III Miii'l) pliii'i'M, i\ I jo iilloril tiwiMMUMlili' ^|-||IHr (Iwil il WtiM intlllo /)>)Mi( 0;ni'll nloiit' nr (n j'i\ r «»f l«»H>« ( »/>. Ivtl'll CMMC liniMi. <|p|M>ill| ll|tt»ll ilMMWIi »Mi'«Mni>"'ijjnir«»*. Iifii till' ptirly im ovpcclt'il (n mIimw llml lip h:»N \U n».'\Ii:MIh(«m| ill M rcniiiMnlilo t|(>;'|<>i> till I III' Noun^'s «»1 iur«iy wliicli llir nM»'i"«' ;«»'«'«<•. «)'«-««i( .MU'. .•!• niiiilt' lor (lie piirpoti'M ol' (lie iniitlii \\\ tp\«>sh«Mi. ll •Mj^li the JMt li')' rum ' \\(tiili| l»i> in'>ri> fuilii {n\) Ml iiiiti'iiiln, \\ 1\«MX' ♦^uiVu'iiMi! »'\i«l»'m'o \m\h Imm'm ;.;iv<>n uj' »|(«mI rucliuM ol tito onciual •liMMiinrnt. or ol' .sonrch nntj ItwM. jo It-I m s«V(>u«l;ny «'x i«l«'iuHv iin'iMoriMJM wore. Iicrnr*' Jh<> \'riinotv riu' siibjivt is \«>ry lullyninl nlily Irrntt'ij nl' liy Mr \.r\i\\ in liin \v»»rk «»u tho Hon! l'i"op«M'(.y Sdilnlfs (h) \h IS oourlusioiiH iiiti y 1h> stntcti MM rolIowM: I Wiirir (lir uhMuoriMl is si^^utl l»y th»» j^iJinlor. it wms r\ iiJiMicf tij^jiiiisl luu) :\\u 1 Mil |>«'f«*»Mis rlaiiuiu";' \iMt I(>t- I mil ir I II' was III jHvssossion. aiiti llu' rxivntiou ol lln' iih'Iiioi'imI wmh »it;iiiiist his inton>Nt. it was pr.>I>al)ly ovi«lonoi» n^^iiiiiHt, (Jiird jut \o was luu in possossion. und it wuh not, Mniiiiisl in sons. his inton'si. it was «'nly a link in a. t'luiin of oircnmstiinccs W'hioh. wluMi takiMi with thoso cirounistanoos, nii^lit prove tho oxistomv of a tU»»'»l i. WIumv the nioiiioriul was (.r) lir.iti V. Iff. 7 C \\ -JSO ; Loith U. I'. SUt. \'2H, l*2i». {y\ lu ChamUrUin. i Ch. I li, S.V^, (.1 lay. Kv. Mv. 4i*J. (.11 mv E\ sec. 435. (M r. 427. S«also Tav. Ev 6cc. 4I<». • •|r,M'mr||;|, ( ((I'llCM 121 (>M'('iil.<'il liy tit"' tfiMitl.tM> it, w/i 1 iiii'loiil(f,i'(|| V fir ((ihdMry, il' Mill |lt'itMMI V. •0 MJ^IlillMl. Ililll Mini 11.11 |(l'IM(i(M fill j Iril >t|^( iini|»>r Ililll .'I ir cxnriif.oil hy IIm triMiiliM' tinil ii |M»MHI'MMili|| III |»'lV\'l'l <>r ll|i' Vl'll'j'il (i ), mill MM, wIm'Ii' m rfuiMliTi'il iki'iiimi id! hvit l,vv»'Ml,y yi/nM iiM win |triii|in'i'i| |»y I.iiimI.ci-h lor mhIi', ncilint^ ""' MiimI, I'd M/ili>, il, wiiM Ih'M UiiiI, IIm'V wen- iiol, IkhihiI Io luoilnci' l.lii- nri'riiKil iIi'kiIm ••mi.iinjr |,||i< l.nini,^ ♦'li''y ii'il, liciir^ in Mii' |inM'ii'HMin|| ur |M»\Vrr ol' t.||i> Vi'll'luiM ('/) IT Mi;.Mi<Hoi'l, iij^ditiMl, d.ll im-imoiih cldiinin;^ iin'ly pro- • liiciii;^ rojiirH (•(iriilinij l»v tli»! Itfj^intrar vvlif.r<; t,li«;y Iihv«; Im'oii ro^JHtoiMMJ .at Inn^lli. 'I'Ih! copifr.s .sliouM f>«; nia'l<; I'nmi tlu^ ori^^itia! (I«!«!«1h, ari<. {(l) Hi' I'ltiiton (C- Swamloii, ID (int. K. WU. (•') Jt. S. (). cap. 112, HtT, l,Hul)-H«o. .'{ ; Vnmrlmr v. llii(fhton, App. It. ;^'J0, 401. H«;o liuith H. I'. Htitt. Ui et A^q., hh to wlioii th«i evt'i»;rjc»s of puHHUHHiuii JH Huthciont; uiid ante p. 101. 100 .1 M ttrf vr.mi'irATION HI' TIIK AMSllJAfT. oii^innl {/). Atul with n'H|)t'ct. to ropicH jj^riicrally, it is to !)(> (>l)H(»rv«'(l that a copy of a copy is not rvidoiu'r, for tlic lu'st (iH'r which thn naiiiir of ih«» tiling a«» a hreak in the chain if a copy (tf a copy w(xee»>tion of the originals (;/). Ihit in |)rovini( the execution of the di'eds to which they rehite, the Htattsnieiit.s in th(> athdavits attached to the memorials, to the etlect that the ileeds were duly executed, may perhaps he used its evidence of the «'X<'cution t)f the doi'ds, if thoy are twenty years old (// ). An ahstract which has heon made up from the dc^eds themselves, or which has heen exanuncd with the deeds, and can l»e shown to correctly state their contents may he used as sirondary evidence of the contents, though the execution may have to l»e proved by other meaiiH (<), (v) liefuidls. As a i^^eneral rule the recitals in a deed are evidence only between parties and i)rivies ( /). And they are evidence ou\y o\' what is acttially recited (/.) They are always taken jis admissions of those who are parties to the deed and interested in the projierty. Thus, where a reeitjil occurred (f) Priiires: Mrl.r,ni. 17 U. C. K. 4«)3. (l ; Burnett v. Lynch, 5 B. & C. GOl ; Biittfrtbee •'\ Furrington, 1 Swan. 10(». (A) Oillett V. Ai>butt, 7 Ad. & E. 78(5 ; I'urd v. Lord Grey, 6 Mod. 45. But see Alexandtr v. Crosby, 1 J. cvidcnn' as a^^ainst partirn cxccntin^ tin' d(MMl containing tin- iccital of a prior iiiHtru- incnt, yet there ou^ht t«) l»e Houie further proof to (iHtaltlish entirely tli(! (execution and validity of the n^cited deed (///). hut where thiu'o are other fa(!tH, Hiu;h aH entries in a Holiei- torH hool). Recitals in a deed prepare). Where facts hav(( heeri niis-recitcd, the true state of facts nuiy ho shown (7). 2. I'rcN iijiiplionM. Many matters of fact arise affectin}^ titles of which no direct evidence can be ^iven, ami thus titles will often be (loi)endent on conclusions of fact founded upon presump- tions. (/) Mdrchioiirnii of Annnndale v. Uarriti, 2 P. Wms. 434. (m) Ford v. Lord drey, Mod. 4. (n) Skipwith v. Shirley, 11 Ve8. 04; liurtiett v. Lynch, 5 H. & C. GOl. (o) See fie Ponton tt Swuiuton, U> Ont. K. OOy. {p) Lee Abs. 3G8 (ii tttilt'ss (.Ihtc is lit'liof llitit tli<> lliiii;^r prrMiiiiKMl litis acliiiillv taUt'ii plnnv Wul i( is licfuusr llirrn nfc iiu iiH'imsMr n'nil in^' iu'lirl' Of iinlM'lipr (lial. |)i'('Miiiii|)(i rnisnl ii|iiiii Nul»i»s•t^* ol' wliicli Jlit'it' is no rcconl. rii'siiiii|>lioM (iiL i t\\o placo of Itrlii'l' (/'). Tilt' i'oitiiilal ioii ol' tin* ijorl.riiir ii ilwit a iiiaii will tialiirally claiiii or enjoy lliai winch ltolon;^s siiiii|itioii nmy, al'ler a ^^rciil lapse ol' time aiiieil Ity oIIht corroltorMliv r t'acl.s, sncli as nninteiiMiiiteil enio\'in<-nt I'or n lrn<'ll) ol' lime and a«'i|ni«'srenee or apparent acipiiesi'ence of Ihose whose olainis ar(> adverse, l>e relied on, parlienlarly where (lie iinpoilanee o\' (he I'aet is iia-onsideialile (n). In the a,l)seiiet' ol' all proof or l\nowled;4"e ol' lads there caji he no presiiinp tion e\«'ept what the law itself points ont. Ihit. inl'ereneis raisine- presnnipt ions may l»i< drawn from nothiner hcin;; known to theeontrary ol' an exist ine; ittatf ol' I'Mcts. Th(» inahility of the ('ourt in many cases to piin a sullicient knowledge of Tax'ts upon which ti» hjise ji, com olnsion, has heen one of tlu' most Treipu'iit elements in the ftnintlalion of llu' doctrine ol' donhtl'iil titles ; Tor tiie ( 'ouit has r»»fnsed oonsJantly to act npon slender evidt'iice uikI le:iV(» the title oj>en in donitt or snspicion. The ;^eneiJil rule as to prt'sinnptitins is, that if the case he snch that sittitie' w ith a iui'\" it wt>uld he (he dntv «»r a iud^'c to jrive a dear direction in I'aNour ol' tlu* fact, (hen it is to ho con- sidered as without reasonahl(> (h)uht ; hut it" it wcaild \n' the duty of a judi;t' to leave it to the jury to pronounce npon the eti'ect of th«' evidence, then it is to he considered ns too douhtful to conclude a j)\irchasor (/). {>■) lliUanj V. ir,, //,»•, 12 Ves. at p. 'itid. (Hi Lee Abs. ;it'.;<. (t) h^meni v (irorork. (> Miul. at p. •")7 ; Cooke v. Soltau, 2 Sim. & St. 163; Hilliiriiv. Waller, 12 Vcs. at p. 2o4. iiiiNus iiMimiv iHiNi; i»r,i:i»s. 125 III) a cull (hr 'oint uml •IKMul tllllt eoii- .1 Ik- junce & St. A iiitTn |»rt'Miiin|il.ii»n, liitwcvcr violi'til., in filvv/iyi linlild td Im' niiHwri't'il lncMirif it. miiy l»i> ii^'iiiiiHt, ilic friitli. In a i-<'iniM-Kiililf ('MM' ill lliiH I'l'oviiic)' n IhimIuumI I< It. Imm Ikiiiim ill Hcnrcli ul" •■iii|)loyiiii'iit.. llin wil'*'. Ml'tfr tin- l)i[('(c of st'Vi'ii yi'Mi'M, l»('!i('vin;f liiiii to In- (|<'ii.'l, iii(uriout, if r(;^isten;d, the (m) Mr Arthur v. /■>»// //'-2 ; Jjick4ar;^(< of a inortj^aj^M ('xistiii;; at tin- nv»'\auc(> was also rri'istcriMl on 'il.st .)ul\, liS75, it was |)iH'HUjno(l that tlu» conveyance was ilcliviTid lu'Torc rc^^istiMtion, ho that the dischar^^e opefate). And tlien< is alno a pre Huniption in I'avonr of the le^j^nlarity of a vestin^j or«h'P(''). Where th»'rt> is nothinj^ to raise a doubt avS to th(! ich-n- tity of tlie persons named in the deeds, it will he presumed from the identity of names (»/); and the possc^ssion of a iK'ed or (K'cds by thi' person whose identity is in (juestioii makes the pi-esmnption si ron/^er (f). Proof of (execution of a deed iiiehides proof that the party by whoni the deed ]iurports to be executed is not only a person of that nann' but tlu^ identical ])erson in whom was vested the estate which the dei-d [)urports to convey (/) ; and the fact that a party was desci"ibed as of York in one deed and lis of Tsianarn in another was held not to be sutlicicuit to rebut this pi-esumption. So, in a case where the patentee, Francis Wi'is, conveyed to L. C jw " Francis Wcjist" , and executed by makinLi^ his mark (his description beinatent and the conveyance), it was held that evi- dence of the deed hav';; f been in th»^ ^ istody of the heir- at-law of L. C. was sulHcient evidence of the identity of the grantor with the patentee of the Crown {(j). But where a deeil was executed in a foreijjjn country during the progress of an investigation for quieting a title, (b) Imp. Hank v, Metcalfe, 11 Ont. R. 4(57. (c) Ilendeinon v. Spencer, 8 P. R. 402. See also K. S. O. cap. 44, aec. 53. sub-sec. 10, ami Re HewUh, 17 Ont. R. 454 ; Re Morse, 8 P. R. 475. (d) yirliolgou V. liurh holder, 21 U. C, R. 108. And see Lawson Prea. Ev. 248, et seq. ((•) Doran v. Reid, 13 C. P. 393. (/) Jioijers V. Shortias, 10 Gr. 243. (;/) Wallbridfie v. Jones, 33 U. C. R. 613. See also Brown v. Living- stone, 21) U. C. li. 520 ; Simpson v. Dismore, 9 M. i W. 47 ; Sew^ll v. Evans, 4 Q. B, 620 ; Ilamber v. Roberts, 7 C. B. 861. (»FKir;iAI,H ASM) OFFiriAl, Af'TH. 127 for tlui ptirposc of n'lijovin^ ii Mot on tlic titlr, Hiitisriu't<»iy evielcnco of iduntity aiitl uxecution whh n3i|uirc.) c«M-tili(!d by "A. UuHHoll, Acting Survciyor-demjral," was n'j«;ct(id with- out proof that A. HuhhuII was the custodian (j). P.y statute; th(! certificate of various public oflicers are receival)lo without proof of si^natuie (/;). And there is a i)resuniption that all thinji^s done by public oflicers are rightly done until the contrary is proved (/). (iv) Life, death and survivor n/dp. There is a presumption that life continues (r)i). Love of life is presumed. And a person proved to have beii"4mM|»l ii>ns« ol' ili-itlli lln' inl<' Iihh Ihmmi Mhim Htalt'il l»v II wrilcr iti Mw I'liUfil S'ni«'H n\' Anu'ricn " An nl>M('n nIiowu m><, lu lin\»> liccii lM'nr«l nl' for hi'vcii vonvM \\y |t.'r .onH, who il" lie hml liccii mIIvowouM iinliiiMlly liiivo Ix'Mrilol' liini, is pi-»>MnMHMl fo liiivc Immmi Mli\<'iml,i| Hm' (>\)>iry "I H\\o\\ !«'\t'n \ i'Mvm. mul lo ]\ii\i> H of llic niM' Hie Mlw»>iif inny Im» Mn|t|ioHi't| lo lm\(« tlicd williiii Hh' scxcii yt'MiM, ,MH llinl wonlil (iccoiml I'or liin Hilciirr, I'or run V(Miii>no<> n.mUo llion^lii (linl llicro hIioiiM Ih' n pr<'Hmn|ilinii t\i «Mi«l of Ihc rii-\('n ycni'M, (iih! Mini llmnc jiMstMiino llud lilt' (It'iilli (oolx plMci' wiMiin Mint pfiiml shoiiltl )irov(» it. Hill il nniHl lie l.-ikcn mm ('MlnliliHlicil iniw i]v\\ while y e\ idene(\ olhei-wise no jnd^^iiienl enn he roniied (7). If the M^senlee w en( M\\.'\y lenipoi-mily the |M'eMniii|»linii nrises ms slated ahoxe . hnl if he went away with IIm' inl»Mition of aei|uiiinjia new doinieile ihe iireHunipiion dots not ai'ise mitil intpury has heeii niat«^ that lu» intenni a certain day te rotnrn home. an' lvtM» ^iven that about tlw time nientionetl in (.)\ Lrwsou Tivs. I'v. '200. ip) I I'lj. lUi. Tliis oiiso \vi\« fnv('rsp eviilciico for tlic Court t.MVOt ujHMi. Sor l\f Dnnii's rni.its, 5 Eij. at pp. Ml, 145; li( U'lHthroA'it Trimti, W. N. ISTil. p. It'u. [q) ^yiti;} V. Athvnvr, S H. T,. ('. IHS ; /W d. Kninht v. Nfpran, T. M. i«- All. S() ; 2 M. A W. S',14 ; /»V o'r.'^f* ji Sittlnnen (, 1 I-: Tru^lf, '> Ch. App. VM) ; 7,V Lrtn'.*' Truftf, Ch. App. 36(3. (r) Lawflon Prea. Ev. 21 '2. i\. 'JHH ; Ue Phfn/\ Mil;. iiiAiii \Ni» sriivivMiismi'. I2fl hit li'llf'i' lie wiiM Ht'i'ii il, Sun I'ljiiiii'tc't f'» j^'i on Ikdii'I tlin hI'MIik'I' (iolihii f/iilf, wliicli \\t\'i 'III tli<> miiiif \(iy(i,(;<> lonf, nil llif rniiMl, ol' ^^f^xi^•(), hj^ ii)iii:i' hiiiumi iiiir in ilic lifif, «((' |itiMHi'iiti»'iM icl niiM'il to til'' 'f U'.t , nii'l |iiiir|inHi'iM I'l'iiii III*' lii'illi'iM fil" til'' li'ir (it, liiw, vvlio liii'l iiil'i|>lt'l I III' (Mini iiH'l, (ui'l jiiii'l IIm' |iiMf|i(iM<> nioncy, wi'»if tlmn H*v»'n yt'iiiM 'il' (lie i|<>ni)in'l;iiil. s IiiihIuiii'I Iui'j Ikcji ImI'I HiiHi''i«rit, I'l iiiiHi' 11 |iri'Minii|i( i'ln ;.!" liis <|fii(li km ms iiimIiuh jui iir'li'in III' 'I'lwi'r ( /' I. niii- who in |ir'>\f<| (,(» lm,\<- li'-cn iinniM,iii<''l wh<-ri hiHt, kii'iwii I'l III' nlivr will III' |ii«".iinM'l to hav 'li«'\, iii;^oiti\«' Moiti, uliich, t.lioii;^rh ii'it. coiifliisi vc, w'l tlii> |itul\ MMMiMtini', il imi'il Itiil 'I'Ikk i II 1 |)i(>s»nn|»l i«>ii MiiMin^ IVniii n|r»< uimcx. mm Im tiiiviviM iliiii Mini>n^ )>iMsi»)i'i wlniMc ilrndi \u ucnininiifil li\ IIIMlt<-r JM III I'lK-l III) tipllltl «M lirnit' ilcliM iiiiiit'i I ul H'lt' I licii' is m> t'\ iilnici' III |'.'Ml\ nllcj^iii;; Mir\ i\ til ; ont< wlio w MM huti Mrcii or lit-Mitl mI' Mli\<iliM|tM lie |i MIIIKM I (<« I iM\ «' snr\ i\ t'll I lit' <>l lii'iM ( I , ImiI il iMM<|iH"iti, ol \;\c\ lit l>i> -Iclcniiiin'ij MM ;- <|nt>Hl iniiM n\ liirl ii|"iii r\ i«l(MUM> As li('l\V(<ltl ImihIiip; on M iMirt'iiMsiM {Il ). (\ ) WiDiitfi i>iixt (Il ill/ hmi'i ntf. TliiMf is M |»r(>s>nn|>lion ri('i|iu«nlly nclrd n|ion lliit AvonuMi ol' M(l\ .■in)''-(>(| t\\u' iwr itu'upMMc oj" luivini; issnr < hi this prrsninpl ion nioiu>y Iims Ikmmi iwiiii out of ('(MiiI I" |vn'tii»s <»ntill(>»i m (jcrnnlt ol' issnr on llicir nnilrrlMkiiiL; I" iv(\jn\ tlio nioiu<\ il* issnr shonM Im' l»oi"n (/»). Hul tin oiivunjstniUN'N niMV Jiistiiy a jmyiiMMJl willionl nn niplii (jt) M/n.; V Oi,)»vMV. HH. 1,. V. IS.H. ()/) In ISS'J lhi> MtcnintM- .ifin wrh IohI. in a hIoihi on l.ivlu> Sn|)i'ii"i Tho i>UHH«'n>;<'''»* >*nil itow tonK to tlu> IxmtH. (Iwiiin to tin* liij^li ••'■^ which WHO luinnnc tlio hoiitH \vt>ri' ciipHi/.t'tl ncvcnil tnni'H, iiini on < n, h iH'0«8ion homthI of tlu'ir o»'»Mi|>i«ntM wore (Jro\vn«'i{, noino Immii^ Hluiiiiid l\V the MowH of (hi- t^iinwalo uh llu' l>oiitn oiipHi/.t'tl. 'I'Ih' HiirvivocH wi'if fliiAlly riHlnoi** to twi> i>!»HH««nH('iH, w hoy liiui a n^r\, wh«» worn iiltnnutclv n'siMiiHl, Th* 'ImntM'H \v«'r«> natiiially in favour of tho H«>aiiUMi wlio wcri iniirtH) tt^ harUNhip us ii^Hunat tho |w«HH4>n^oiH. annr of llio mah-x hh ajjanist tho foniiiU'H. Ihit tho roHult hhowH llmt i( a rulo woro laid .iown a» to |troituniittioiia it woulil bo ptiruly iirbitraiy. (:i La\V80u rr«*«. Kv. '24(1. (Art V. A^ r.tUli Kd. ; III "II' •'Iff (I wiii\f\< 'I llifii i.iffifH):; I'l li'i ,Slii' '.vif. liK.y Hi\ \fiirH III ii'M' iiinl ;ii M'lff ij iiiii||(!i I II' ;l iiM< III ',' wliifli ftii V ilifil llir ('oiirl lli.i' il Win II ii;iIiii'mI iiii|>< i .".iliilit.y l.|iii.(. y>\\f lluIlM lm\i' .'IMV llf'lf flllMli'll ,\lfl nil fil'Ifl U M.'-i llUfjf I'lii llir ri';'iMl I mIiiiii I' ) I'm ly Mill'' \ f f i '. )i ii< I iiiiif iii 'iiHi'^', IS t lir f;i I lit' il II'M' III, 'A 1 1 if 1 1 t If |t|'i"il|lil|il.|' III liilM 111 I II il.'li'il (III, I lull, 'ii III ' I If ni ."■ I >l ;i iiDi n I' 'I \\ < iin m u If i luil hi'MT li)|i| rliilijlf IM / ) LmilSt 1,1 iiirliH? .liir. W,t\. (i/) h'liin'll V. I'linifiiiii, 2'.» (Ir. iJI.T («•) /;.' '••.. iil Out. U. 10'.). (/) Hou Dart V. •% I' (itli K I. :t'il. m. i i. .t.««, (g) Hdo Itf '.., 'il Out r.l. lim, 111, (h) Durt V. it V. <»th Ed. liHl ; Lawsnii I'roH. Kv. 10-«, n -*//. MVl VMUI h \ ri"\ "I I HI Misl II Vt I (l\i'ii' Will ni> mi'mimI uilt'icinirMc ( I ) 11 MM |iM'Mlltll|i| OMUHol 111" I i'l>\iHi'il l'\ I III' nilini'Hiion'i Ml tli't'liMiil iniiM m| III IuI'^ImiuiI <>i w \\\< III 111 iii'ii inri'i'i, t«\fii w hi'M lln> rliilij Wll, V'OUi'iM Vi'tj Ix'I'tMi' lilll Imlll lll'li'l llli' llllin inj'i' ( /) In uMi'il imi'i ii'lnlinn In |'ii>|ii>il\ fnliiiliilMl imi Mini j>'«>i\i'i!il I t|>ii( III inn I'l' nun I iniM" iiii' Mnlliiiriil in imn. i |nv.nin)>< ii'ii >< r in-ii I ui K iiiiil v\ lii'M Mil' I'MJiMliiliil iiiii \\:\ t ln'i-n Ii'n>' i''>nliiin«'i| IIk- )ii I'lniiipl ion i'l fil mn/'ii (/i 'I'lii'* )>i <' .iniipl ii'ii niM\ III' ii'liilHriJ li\ tlii- prntil' Mini IIh \\ >' ni Ml I.Min.'ilv liNi'il Willi iiniidii'i mini in 'HH'Ii m ininii HI M** 1o nu^i' Hii" 'ill nil' I'll' ■nni|ilii>n nl' iiiim iiitir w il li liiiii ( »// 1 r.nl ihi' I'll' nnii'l inn im '^hnnj^ in rinmir nl' llit> rr|.Miliiril\ nl (111' mn I ifi<',i' mill \ i r\ cli'iir t'\ iilcnct' iihimI ln> jii\ m |i. ri'liin i< [)i^ Wlicit' .'I nuiiiiii}M> in I'mcI Iimm Ihtii |iim\ii| r\ iiliMii I' nl r(')Mil.i( inn .'iiiil onlinliiltil inn in nn( Mnlliiiinl In 0>>lMlilcili M jMini iii.'ii I i:i;',«" 1''^ Anil \\ lull' t'\ ii|t'nri> III' It |iii tntinninl I ill I ImImI inn w iri j' i\ rn, iiiul ii ni ( ilinili' nl" Hh ni.n I i!i',i' w I* ;iUn ijixi'ii III i'\ iili'iii'i'. il wiim IicM iiinirn'i s:n \ In jir.i\ .' jMil>li« It mn nl liiiinuM/O N'ni in il nt'n'HM;ir\ t> |>rn\.' ill.' iiullimilv nl' lIu' cliMiiv liiiin wlin nlliriiilr;! (./) \n.l in .1 « r<.' xxli.ii' ;\ Umiifin ('iillmlir |irit>Ml (lip> nil lii"it inn nl linnns. Ilu' Wniniin ('Mllinlir .\v»'hiMslin|> h.i\ III'. .1 -iiiiii'il In (Iis|i('n'ii> willi Ilu* nlliiii, il \\ i\ ]wl\ th.ll I'll' \rl ni' \ U'l. CM) > li, M'f I ( r). it'tni'i ii.'ii (inv (• \ \U\t \ \ V (1th \ .«si. Viii '■!('«' / I.IIIH V. II ,((/, '/ Onl i; ll'Mi. rtHii « UM'"* tlu'H' ritnl [j\ K».i'( \ Mttlfr. '2\ I r K ■»,(• " r «• 1{ s;. / r.iiiH V U.ill. Out. K H^iv >.•«' WiW/i.'.nt \ / •u.v'N. •.'.<« »iii K .'it {k\ l,i»w«,Mi r»T». Kx 104 . /Sv ,i,m II Ihilrr v, .U.M'W/kihi/i. 'J I'. I'. It. |«|t (.AJ'-rK V. t 'l.l)»l.l». 10 V. i' \{. t>«M. (nl /W ./r»n. /'»•*•«! ^»'« V / iiiiiii l/iv (III l|(i' |i»itlv t|i'ii\iiij' Mn' viiliilily "I Mil' MiMi I iMiM' I'l c'lliiMiMli il, mimI lliiii III" iii\ (iliJily WMM iim(, <"i|(iltliitlM<|, mm llci'' w/i'i ii'» iiionr Mini, nil lirt>iiM)> liiuj Im>i>ii jmhiimI i-^). (\ii| I'^i-I infill I mil n/' iinuli/iiiii'M \Vlll>l»' M llimlj^MLlill rMlllMIIII'il ill ||()MM(>MMi(||| I'dl iM'iM' iliiiti Iwi'iily yi'MiM mI'Ii'I' IIh' nioil.jfdjrc (uiiiji'i 11. .,;| Imvv im III liiiiiliiMuiiH III' iM'liiiii'O uilliMiil, |iM\iii(f iiih'ic'il if. vv>m |i|i"ti|iiii'i| lliiil IIm' liiMiH'V u»iM |iMii| (III flu- i\ny ni\i\ lliiif, |||)> IIIUI ljrM|.;i'l' lull! IIM MIlliHiMl.ill^f \.\l\l' ( I } \N lll'lt' II IIIMll,J^)IK<' WIIM Mill iMfiffl, licl'dic I lie (|»iy I'df riii|iiM|»l iiiii. Ii\' IIm' rMiivi'\(iin'i> oj' flii' dim l,(^fM^<''l l/i»i'l« lo II l|illMilll>l> III' |,||i> llirilljrMl./1'l', VvllO l,(i(il< llll'l Mid i ll(»l ifli 'I |MiMHi'HMii»ii I'mi l.liirli'i'ii yi'tirn, il, vvmh Im-M IIkiI. m (•',iiv»'y»iiic»' IVnIII IIm' MIMI ♦jnnri'i" f,M l||<« lIMHi^lM'l' oT Mic M|llif,y mI' »'• i|i'iii|il iiiM niijijil. Iir |)i'i> ((ulifilicij MiMil|»ii^r ( (» ). All'! vvImti' IIm' iiiMil|fn^i' (jccfj i'l in |||I« pMHHrHfliMM mI' III" |||M|I^(I,;^M»-, Ml- MMMlf MM" «l)l,i Ml i M^^ iiihIit liiiii, il mH'miiIm II. I'nir (n<'Miiiii|il.iMM lliiil. I.lic iii'irlinii/*' llll'l lii'i'ii MiiiiHJifij, iiiiil n I "(MM vi-yiiiic" mdmI"^') lint, t.li'! llll'l" Inrl. I.IimI. m. iiiMilini^c wii's mvit lliirl.y yoirM mM vvim lirlil Mill. IHTi'MMMlily Im Idi'll- )l, |»r"HII Ml | »l/iMII 'il |//lVMl"Mt,, wlit'ii Mil' l.rriiDi mI" |»(i.yiiM'Ml. vvit" n\' miwIi ii mi.l.iir" lluit, llicy iiiinlil. Iiitvc l»'"ii <'xl,cMi|i''l MV"r 11, Imm;^ |»"i imiI, >iii'I tlif, iin»rlii(ii'i< \VM.M n'rcni'ij I.m in mimiIitm cinivfymn'.fM hm n MiiliMi,s|,iiijr iticinnlit'fUKM' i ii<). (viii) M iHi'r/lii iirniiH. Wlicrr Mill' I.M wliMMi n iIi'vIm" Ih mki'I", ),< 'f it,, iii'illicr i'X|ir<'HHly rc/icctH iimt ii(',rr(i|tl,H if,, lie will li'; pi" nun"'! to )in'r|if, if, (,»■). («) 0r V. K'linriln, I '» Out, II. '2'>. in Itir ,1,-in. hinhij, v. M -S i',. .', [', . C. It '2s » , !)„■ ,l.-m. M 'trf;/',r v. //.iir/,r, r. O. S. 'IIHJ; Im/,. It'iult v. Mitrnlft, II Orit. K. Id?. ((/) Ihieilfin. Mcl.i-iin v, W'hitfuiiloti, r, <) H. U'l. (1) Vnllinn V. Iff III IIH)'!/, II i;. (;. It. nt p .i'.>r>. (ir) Mchilimfi v. Itnui-ni, 12 I'. It. '2H'J. (j) lie Di-fiie, 2 Out. It. (i'iU ; lie luinhavi, 2'.} fir. 2.jH. I.U v» itii i. \ii.»N or tin: aiimiiia'I' A I M'|>4IIU II I |iiiNsi>s.Hi'(iinit'i| III rliiiiM li\' II iij'lil I'mI iiikI n««( liy II u iMii^rnl till»'(i/'. AihI mh, \vlM>it> n |m>iii,,|, luiil Ihm'm f«»r h iiiiiiil>iMM«^rr. 1l Inil n lili' tvilnlr in llir Inn. I it wn'i lu>M (li:ii Iii> nniMl l)i> |ti'i"Miiiii>i| (o cltiini IIh-IiI. t'sltlr l|ll .|i>ri|. Mini IIimI Im' I'oIiIiI llnl n'l\- nil Im . f1i)SS«<'4Mi<l|l1lMll ly l>\l*'l|l|l>l| III M |M'||u.| l«IMi4 iMI oiMMI llilllll lllli'hi. u\\ Ml;: l«.'n I .1 ll ii»s.« III ii'iiitiiiiili'i ( : ). lnl«'M(:n'\ tl<>|it>ii<|s ii|Min iH'^nlixi' |tiii't|', / « . I lull Hi,. • Um'«»iumi'.| >|i/iltli' .i| noluiil iiH|i:ition I.. II •MM id' MilniiniMliMliun nir. in IIm n l>si>n»'«' «»l' >.|HMMiil rirriinisliinn's. in'O'pliMJ Ity i-unv «'\ nin « i IS snll\i'i«'iiJ III nii-.f llu* )»ir.sinii|(iiin, mii will nnl nllrrlin; lli<< l,-iM I ii'ir III lii!« t'ln'l ion i<( i ;«.i\?. (,!/» ;»f /»'.«* iw. **.M;r V»."s. S,„l V. A.iir "(M»iil \{ U.". , III .\|.|. It •1 « • r>ti; « '. *' s r W i:u i.ii Trtr: V A I'.,i;ili IM . :m) IS'IMIIII AN' Is i:m ('IIAI'IKIf VII l\< IMIUI \ \( I. «. I I. li. I M. !». 10 II. 12 Mnrl'/iiil I II II I niiiiiii'niiiiii ; ij' iii ,(iUif, Tll.l in. Iiitiill I III in'ininniiti I h 1 1 iniifr ^iiiurn f't.i'ii'iltnnin. ( i ► fi'iin III/ I'liinn'hf, (ii ) Mnrfifilifr I III iiitn. (iii) f;'iiii il'ililr /''nliili^i < i V ) /''/•/»■ i/rii III III ml n. Ikl'iflHhri 1/ i/ihIiIh, i'rii'iiii' H 1 1 '• H , i 'I'nil'll Imiiln. /,'M irii'liiiH. Ihiirri', ( '11 rlr.Hif, /'Jiisriiii'iiln Mn'liii II i< K liii'iin. I(. Ih tln! |Mir«'liHs'' I mI" IiIh vcikIoi', tiiMJ toHnircli for Hin-atH ) T ,C- L. (Ui. V. Shiii\ IC. (Jr. IK); linmininii I.. A S. Hoc'ij v. A'lt- Iriiliic, 2;i (ir. rhjri. y\ii(| Hfr«; iiiil^-, p. HO. IM(i IN" IMHHANriis. (MiinltrMiHTM or inttTi'MlH if lie Ikim ho iirhixl inilin< »•!' tin n, (<). He is cnliHftl l.i iciv n|Mtii Hii< rr^^istt'ictl fjllr, iiml id nssuiiH' (IimI W mmv umc^^isliTt'il iiitri'cslH ilo iictunlly csi .1 Hlt'V Nvill Iti' IVmII'ImIiMiI MIIt| ((/). (lie |M»Ii<'\ nl' our liiw iM'iii;^; tlini |»iir ohast'iM mIiouI'1 ltt> iiKlc lo MMtM'ihiin tlir nctiitil Mliitc of |||.. i\{,\o l)y Hoaicli in >( pnrj'h.'iscr m mmmiiiihm I to I i)i\ notice of n't;isti'rt'il intiMTsts ulirllitT lie Mriin'ln',s I'or Mitin or not. is to l.«' tfiKt'ii ns nUi'ctiii^ only tin* n>lnt.ioiis|ii|. lu't I ween hiniscir nnil tlu" ow nns of tlic rt';4;ist('rt't| intriT,sl> or, as aiiains t tl w vendor til le itnrehaster in ninler no oiih Mi pition tosearoli, aixl il* llie \enri'l»y the piirehaser is indneeil to arcepl the (iilr he will he held r<"s|tonsil>l(> I'or the injury therehy tloiie 111 the puri'haser. So. where a lourth niortna;;ee repreHenltil that his secui'ity was n seeoinl niortnaoe. and theicl.y in«luoe«l the plaintill' to purchase it. the latter was lieM iMititleij t«» n return of the money paid on discov eriii;;' tluil (he niort^aee was worthless, though he n»ii;lit ha\e ascer (aine}'tife sold Tree I'lom incumhrances, it is not mMVssarv that amthini:" siiould he saiti ahouMlieiii in the jiartieuiarsof sale, hecause il' there are any they will he ivuiovcd or pai«l out of the purchasi* money (h). Conse tjucntly. when an istate is oU'ered ;jjenerally foi" sale the pui' (c) AiVit llntik V. Ilirnj, L. H 7 II. Ij. lit p. I"i7. («/) W. 8. O. cap. 114. soiv\ 7('.. H'.», M. {,•) ,^)/^H.s■Mll V. />'<•/i\\<\ Im' Iimm m li^lit Jo rt'<|uiit" MiIm |.i» )»' mIimwii or iImiic lifrmt' lie nm In- (•(.tll|M'll<'<| Id |»My Hliy |«lll, n\' lilH |)||ti liiuic IIHMHV ('1. Am Sil' < ifdrKr .Ii'hh«'I, IM.|{ ,H(ii tilt' liill., I»iit. Ill' tliM'M nut. ImI<«' n foiwiynwrr sill))!'!'! In lln' iiiciiiiiliiMiiccH. " Ami il' un ii hmIt <•!' n \\r siiii|)li'. liiiiMciiinlH'i-t'ij, il, )i|i|iriii'M tliiil. till' M'MiJfii ciiii (•(iiivfy uiily Mil t'(|iiily ol' i')'n it, it is clear that the vemlor can do so u.s against the incuiiilirancer. As the vendor has a lien on the estate i'or his purchase money, so the [lurchasei" has, as a;^ainst the vendor, a lien (i) Uiimhh'V. (lummrinin, '.Kir. '2()() ; i'limfinn v. (,'iirti-r,U Out. I!, l.'il. I./) '.» q. n. 1). lit p. (i-jo. (A) .liitf, p. 42. (') McLenniin v. McLrmi, 27 fJr. •'•1. I MM l\< (MUM WilM «>n In 1 )MH rliM I' nii>i\>\ Ixi tl)i' .Ii nlmi ;m' m| iih miiiIh iih w hull Hh' vi'ii'lm kMi'Ih I\i' { \ii.| • . w h) M till Mil mill | t' I in I I\:( ii- iuvMIi'V (I\i' viii'lm nm il ill uluii mi- it , w Itt'lji. i h,'\ in* HI 1 1. 1 I III >( M" I I ('I (• «\ i«n;lll< H'lllli il iMi'Mlltli) illHi"! lM>fi»»i' lli> I'HM I I'lUpi'l )i:l \ nti 111 1 i| ( 111' I'MI I IliMi' IMii||i'\ ( »H , .niil till- |>\n I Ii(( < luiiMnl In i.) m'plv (III- Ml\|vn' MMi'i's ( ^i\ \iii| w lii'i i< i 111' I'lii iIki It' IIH III" 'N I'l iml |iii\ iiMi' \1U1I\i'i||M(«'I> I'lll (III' (llll<> |ii| |ill\r,|rll( il iji'l'iM li-'l l'\ till' .liM ••rnii'lll "I will ir ll I'l p.l\lllili' li\ lll'il iiillH'llt'i, (l:i |>i\r)'1i.iM I iM ''l > i| | j m( II I |i 1 1 1 IP Ih' IS iMiht l'>iiH t.> III "ill' ,1 run. I 1. II linn i|i n liiirt'o, cx cii I In mi p 1 1 (I r ii>\ iii.n in.ilin lii-l • ^ \m 1 ii|i< Ini |iin I'li.'iM' iiiiiiii'\ hi'riiiiii i 111 Hltii'llir 111 nil ' I'M < ' \\ lli'i I' .'I ili'i'i I'l' M Ini lu.'iui'i' .In I I'll'. I ,1 '\!inii' lii'i' lii'iii niciiiiiliriMiri (I. I 111' ( '.>ui I . on llii> \iMi.|.M .j.'l.'iiill liiiiili'.l M I iiiii' williMi wliii'li ill' •■.li<>iil.| .li'M'h.n .' :ni nirnnilii finci' i^Miiinl Hh'Imii'I t'.nlnio wlnrli (!i(> juiri'h.rMi w .ii l.i In' .'il IiIh'iIv I.i |iir r.'i till' .nil. Mini iirt'cssMi \ t.> In' pniil. Ilic pin ohas. iii.Mii'V in ('.Mul I'l'iii', ii]>pl;i'il i>i<> lin)f<> |iimiiIimI\ tl>o in»MnnlM-,Mn«'r ^,V V tliT p.i\ iii.nl nl till' pmoli.'^o' iiiniii'V l>ili lit'lnri' fun \i'\aiuN' ihr pur»'l\;isi'r iumv iitonit I In' pinrliMsc iiiniirx. j»»\ <»»w/i.V V. <>i<'»i«'i. ;• ill '.'iM. ('i^ Sij.^. .N4S. M,nrnn.^ti \ ll..rA,..iii. M \' I" K UW. uA tidmh!, V. (i'mwwitx.'m, '.• (ir. 1",>S. [p\ )y,tl,rj>\ Sh,ihr2 iir 4'i7 ; I'ulhi \ . lh:t,ilii,,y, H {Iv. Mi , (7(1(1. /i Stvu'tfi V. .V. O""". l-> tJr. VSl ; Uruileri-ou v. UtiUit'. IS (Ir. 80. (/I i'^nn y,^u \. i'.ntir. «< Out. K. 4'2r>. nxt'iriilink^ {'li.tntl,r \\ />«•«•, 7 r»r. 4:V2 . Th. .iw »■>•.')» \. Kruhfk.lL 1 lir. ."iJ'J; U\ii,iill v. / / 1 Nui.f/i, '21 (Ir. 4i»."'. Aiul Hiv j .■>trn. sub Tit. \ i'Rtin>; OnltTH. MM|ih;\'l'i \ . Ii I ,1 I \iii,i \- < I ; Ml VMIM l,v l.'lf» |||ii(|j^|| Hi" till' tl' I' I I 'i\ I'lillltt I III I (I'll In »• < (' II I ('I flu I I Mm IIM'll'l W III* ll I ll' |>I|M llllMI'l i'l (III l'M>< III 'I ' "> \ III I I'liMV I \ 'MK ' til' |ii|l ( llil'dl i'l, (I 'I • J^ II' ( III I 'I if, 1 "|||iin>i| !'• Ill" I ' III' 'i , II I "III Mil' ' ' ll'l"! M fO\ I'lMllll'l ' ' I 11* llm vi'ii'I'ii iiii'l |ii|i •liilU'i III" li'iMi i^'ii'ii Hill 'i| till ,• III' Kill In iiiii'i"'. (tii'l I III \ I'li'l"! i'l I III II ' I ',■ mil "' III Ml' ii'ii ' li'i-M-r', nil' I »' iii\ I \ nil' I lii ii'i i'iiiii|\' wliiili'Vi'f iiijiMli I ^\n' Vill'jni ll" In II 'tlill^i'l l»i |iil', "II till ill' iMli'il Hill" i'diSP- i|iMiill\' iji'ii '>\ I'l I "I, inili'i'i ll Ik' "im williiii llii 'ii'l'iiM ('in 'iiiilil'i ( " ) \N In 1 1 I III' I HI I » I111.M1 I 1 1 II 'I (n I mil I ii'i'. |i <|^| "I' mm iri' niii I pi mil I' in I' I 'I' II' ! ii'il iii'ii'il. II I ''III 1 1 '. Ill ihi^ i|i'i«'liiii[/i 'I li / I lii> \ I ii'lm . ' ll |iiii'| ' ml. 1 ll I In |iin « 1,11 ;i ni'm /, liiil, »'ii,i|)l»l' ^^ Hi' |ii|ir|iiiMi' li\ Ink ill! ' II I l In ; |>iim Iimm- ni'iuiy mii'I I'liiK M I I iM\ I'yiiiM'i' wil ll M. mvi iiniil I'll IuiHki ii'MiiMiri'' '-ii ll|l> Vi'llilll (IJil I rllli III III III" \i l|il"l I'l »( lil'i.' II ll\'>l\,iril'^(^ ill rliiHi'iJ III. Hi" liiiif III' 'iiji iMi'i ll. WM'i III i'l l.liM.t> 11 I'lll ui'iilij lit' li ' "I iiii|nl III" (iiii'ivmI 'll III" iii'Mimlii )inf'«', iifi'l I Iml I ill' \ riiilnr UMft Imiiiu'I In kiiihv" ll. Ir, lii-; » '«v"n>inl. I'>r III! I Ik r irriiiriihci' { " > A'l jiiiii^ Mil llif iiiiirl|.nii.;i' I'li Hn- |iiir'»lum<' iMOii<'y r^rrMiifi'i ill llif li/i,iii|,'i i.lii' vi'Mijur, l.ji" |>'ii fliMsir Ikih n pfif"riti>il ri|iiily (1, . 'M , llii'iron 1,0 Mil' I'xl.i'iil. '»l (iny ifif,iM(iliiu;jf''H wliicli till" vi'iiijur niij^lit, (,»> (|i."cli(i,ii^" (./), f#ijf, t.lic M'.ii'-f («) Kilt;, r. m. (/I llr K.iiiiflii, 'M (Jr. .1".. :i(l . //. W,U>,,i 'iJ ; /•'.(lUion 'i . Iliiwr, .'{ A (ip. I: "/7.'< ; UliitihiiiiHr V. Ilniiln. ■^i^ li. (;. It. 7<'., '(H (w) Trii>iiv.atiiliu,r,('..l...l. 117. t\ui\H*:n Cltirk v. lu.iidfi /tl (.r f,0 (.r) I'er Hlr(iii({, V.(-' , in llmilfnon v. Iit'iuh, ]H (ir '.>'>, 140 INXIMUKAXCKS. wliich lie may ohtaiii by asHertiii;; his lit-ii will hv ^'rantt-d only to pirvi'nt unneccMsaiy circuity of action (if), antl if th, overriiliii;^ (Jhnrrli Societij v. .1/ •(^■(cc/i, 15 Or.'iSl. ami llenditriion V. nroicii, 18 Gr. 7'.>, for the reus )iis stateil in the disiontinj; judgment of Strong, V.C., in tlie latter case ; U'oo,/ v. I'ufje, 2(5 Gr. 305. (d) Loi'flace v. Harrington, 27 Gr. 178. (i) Egleion v. Howe, 3 App. K. o7<). (c) Per Strong, V.C., in Henm v. Browi', 18 Gr. at p. 91, citing h'ation V. MidWalex It. \V. Co., L. U. 2 C. P. olJa. (d) Edwards v. McLeay, Coop. 308; He liwk, Peck v. Buck, 6 P. R. 9'J. Mniny the existence of incumhrances which the Vendor ou;;ht to have dischar;;ed ( /') : iiml in a foreclosure suit the delV-ndant was refused an account of (lama. that is, to jmrcha^t' ainori' 0(Hiity of rtMliMiiption, am! acniitniet fortlK* lanvhasc of an estate in n»oi't;4aL;<' for a ^iven suni of wliicli iIm- tiioi-tijaijc tl('l)t foi'iiis part, and which is to he retained li\' the |)Mrchasei' out of ihe purehase money (/>). In Ihc former case the land remains thci propei* fund for tlie dis- charj^e of the mort;;a,;;'e ; in thi' latti'i", the purehasci- hocomoH iiersonallv iialile to the vendor for the dischar-'v of the outstandiiii^mort^i^au'e. Thus, whenMi pinx'haser took a conveyance of hind in considei'ation of " 81 ,().")() and assum- ing the payment of the mortgages " which the vendor ha 1 covenanted with ai previous owni'r to pay, it was held that, upon niaiurity of one of the outstanding mortgages auil hefore its payment had heen enforced, the purchaser was hound as against the vendor to pay it otf and save him 'rem jiersonal liability thereon (/). The purcluise deed, ought to show on its face wliether or not the purchaser asHUi'ies lirbility for the incumbrance, that is to say, it shoiild show either that the amount of the incumbrance is )mrt of the purchase money, winch amount the ])urchaser has retained to pay oti'the incumbrance at nuiturity, or else that he buys only an eipiity of redemption. If it is left open, or the conveyance is ambiguous in its terms, it becomes a question of fact to be determined from the surrounding circumstances. Thus, in Corbi/ v. Gniif (m), where land subject to mortgage was conveyed, the Court admitted evi- dence as to the true consideration and purpose of the con- veyance, to rebut the presumption arising from the transac- tion that th> grantee should indemnify his grantor against (k) Coote on Mortgage, 5th Ed. 1045. (/) Canavan v. Meek, 2 Ont. R. 626. (m) 15 Out. R. 1. See also lirit. Can. L. Co. v. Tear, 23 Ont. R. 664. Muirni.\(;Ks a\i> i\< iMr.itANi r,s (;i;ni;i: ai.i.y I4:i (lit- iiiortnu^T. Aii'l ill ]i'iil!ir \. hirLsmi (//* wlit'i'f tlic coiisryaiM'r was niult' in a iioiniui'c ol' tlic )iiir('lias»-i' it was held tliut lie WHS not liahlc, iKti, lia\ iii;,^ lici-ii a |»arty {>> llii- (•(iiitiact. On H j>ur<'liHs<' (»f laixl in niorfoa;;)', ihc aiiiMimt dl" tlif incinnliranft' Ix.'in;,' •'•'tiintMl liy (In- |»iirclia.say (ill' tlic incnnilii iincc, (lie oltji^aiion tr pfitcct (In- vfU'lor is ;nH'i|nitalil(' one, arising- IVom tlic nature of the transaction, aii'l not a conti'act, atul does not, liin Cozier, Parker v. Glover, 24 Gr. 5.'J7. (t) See Frontenac L. d- 1. C.>. v. Ili/Dp, 21 O.it. R. at pp. .',7'.). r,sa. K*) 144 IXCL'MMUAXCES. indemnify the vendor, but dofs not anidunt to an undti'- takinj^ U) pay the niort^aj^ee. The liability of one who ])Ui'eha.s('H land in niort\' .<1.(!()0, and the other for a niort;^niLju of .SoOO, and (/ostello liavin;4' made default the mort^a^^ee sold the land under the power of sale in his niort^rant^, mid Xorris l)<)Ui;ht to save liiiiiself, it was ludd that lie had no recourse a<^ainsb O.stello (ij). If a purchaser takes land suhjcct to an ineundnimce, iiii|uiryshould l)e made of the incumhiancer as in the anmunt due thej'eon, taking* care to inform him of tlu; ohject (tf the iiii|uiry (r); and thou<^h it may l>e tiiat a niorty;aj,''ee need imt answer any in(|uiry as to the particulars of his security unless the a[)plicaiit is entitled and oilers to ri'deem him (ft), yet if he does answer he will he hound by his reply {!>). But astatement maile to the vendor (mort|>;a^or) hy a niorfc- jja^ee was held not to bind him in the absence of evidence that the iiiquiry by the vendor had been made on l»ehaU* of the ])urchaser, ami that the moi't<^a;^ee w»us aware of it (c). A mortj^a^^e thoui^h on its face nuide to secure payment of a specilie amount, may be provei'.s<)M. It was his (Inly t'> li'ivc imitiircd of (lie inurfojiMr,. " NN'lit'i't' II srcond moi't^vi^^c is crcad'"! jiritTii liisl, iiuiit vii'-f for M llii('l>iMliiiurclias('r lodk a conx cyiiin'i' <■[' I.'IhI siiltjcct. (ft II laiildiiiH^ sucicty iii(»rt|ja;;(', paying u |uvilion dl" (ill' |)iir('litis(' inoiicy in ciisli, assiiniin^- the iiior'.u'ni:'' "on wliicli S(l(!l is \i't niipaid." and liiN'iii" n niorl^i'a'^c lor llic Imlaiu'i', It appcart'd on int|iiiry tlint tin' I'uildin;;' society claiiiKMl a, nnnilM'r of snmll instaliiicnis jiniouni in;^; in all to Jjf I ,|.S!>.*2r). It was held that tlicpiir- t'hasiM" was cntith'd tor(>tain the canh vahKioT the ni(»rt<'a'rr lit tht» date of the purchase if the society would accept it. I'ut if not then such sum as with interest on it would meet th(> iU'iTuin:^ ]);iyinents. •2. 7 (t.Vl'M. Taxes are a Hon on land, and 'o priorit}' over any claini, lien, privilee^oor incunihrance ot any pai'ty except the Crown, and do not rtMpiire re;4istration to proHei*V(^ pri- ority (,'/); ftnd as hetween vendor and purchaser they are lui incunihrance, and if there ar(! any in arn^ar the vendor .should remove tiieiiuAV Search should, tlierefore, be made ill the C^)untv Treaaurer's ()tli(?e, and a C(M"titicate obtained IVoni him. 'I'he certificate should show on its face that tlu^ .statement of taxes in arrear for the precedinj^ year has (.) Holt V Ilopkimon, 3 DeG. it J. 177 ; S» II. L. C. 514 ; Memies v. l.iljhtfOnt. 11 10(1 'Jolt (f) 29 Gr. 310. (<;) .V" Vict. cap. 48, sec. 137. (/«) Haynei v. Smith, 11 U. C. R. 57. 5'M\A lAXKS. 117 liicn itImiiiciI Ity tin- Tnu iiHlii|t TirMMiiffi' |m (lie ('itiinly TiTMHiiiTi' ( »' ). 11" it tiocH Mill mIh»nv ihis, tlnii 11 ct'ililicdli' sliuiiM lie |ii(tcurcil IVoin the Tow iislii|i 'rn-nMiin'r iilso, in wliifll \l slidlllil lir m|.;i(.c<1 llinl (lie ct (HccIdi m roll liiiH iMiri ivt.miK'd liy t.liiit. uHiccr to lln' '\'ii-iiHuyiV ( j ) If IIm- mil liiiM iiol, IxTii ict.unit'fl, (III- rollrj'tor s rrccipt, I'ur I lie (n \i-m ol' lilt' piist yf!U- will III' still'K-iMit ; l.iit, I, lie ( 'Miiiity Ti'i'/ts- iircr's (I'll ili<'ul.»' nIiomM Im' i^ot, in cv fiy en;.*' (o slicw tliiit lilt If jifc 111* MiTt'jirH. In |if!U'l.i<'f. il. is iisii;il (o )i('<'i|il, f in- (•(ijli'cl.ttr'.s ci'ci'iptH uitli (li'- ('omily 'IViusiirfrM ci'ililjcjid' uillmnl |iri icniin;^' n citI ilic'iti' IVitni tlif 'I t»\vn.~.lii|» 'iVt-ns- mt'C. Altt'i' lilt' ( 'i»ll(;cti>rH roll lins lifcn iftiii nti;fri><*iii«'iit t<» till' ctnilrniy h' vomlur iismuiii«m i\\v ]i:i\ iiii'iil of llu" |)n»|Mirtii»M HJ' tJi*> t.i • I'ltr fln' yciir ti|i (<• til ii> coiiiitK-liitn •» f tin- l.itlf, tilt' |niiTlinstM uinlcr the |>i»\vim' of .siilc in tin- HCl'Mlnl IllOlil^ll'l'. IIIhIiT tin- rolloNvill'!' MllUlllt'st oIIhi roiidiJioiiH : -•' I. TIj!' vnnlor nicrrly rxcrciscs his ri;^lit to soil uii«|«T Hjiiil iiiort;4a;;»'. nil tlic I'.stat)' tty iiitcrcsl it ln»-li Ik- is tlMT»'l«y fmpowi'nMl t iiiin»|K'rty will In- otli-^fil Tor siil*', siilijctt to n iMnrt;^;)!'^!' ami li«'ii t«i till* Vfinlor foi- i?r).()(M) aixl iiitfifst tiiticnn at tli«' raU* of niuf |mt (*<>iittiiM prr aniMini IVnni lln' I'ith «lay of |)<>(>i>iiilH>r. |SS!>; liiit tliat inort.;jM;;t' iiin\ Im> )»aii| oH* forthw itii, il" tlic piircliasfr ho dcsiics, tlir ainomit Immu;; now ijiir. ' 'I'lif purchaser <'l('('t('<| not' to pny oil' till' fii'st ni«»rt«^i;;»'. It was h*'l, though tlif vi'inlor. inxlfr th*> sliptilation in his first niort;;ji^i'. iui;;lit afterwarMs ail r. H 217. Hamt-m v. Jo$eph, 8 1*. U. 2'.t3, imiHt bu coiiHidered ovir ruknl by Peoples' /.o\\ in practice. (o> 20OnU K. 532. (p) Corbttt V. Tajflor, 23 U. C. R. 454. l.nrAI, IMI'IIOVKMKNI.S I»IIAI\A«»K SKWKMM. 14!( will huv*' no rccuiii'Mr ni^JiiiiHt, tin' v<'iiiiHat iuri lor taxes evni alter a vestiii;^ <»r ; Silr,-rtli',rnr v. Lmir, 10 I'. ('. U. T.\; III- h'>-niifit!i, ll'iiih' v. K ■nneilij, 20 (ir. A.i. (r) Sli'iniiiw lliinlir, 2 Cli. l'A\. :«:!■",. {») Thi- Con. Mini. Ai-I, H'.ri, hoch '»li',l, (112. (/) Till' Con. .Mini, .in, ls'.r>, hoc. iVil. (ii) Till- Vim. Mitii. Art, is'.ri. Hi'c. (;i2, i-i x/'./. ((') Tin- i'oii. .Mini. Art, iSlCi. .sec. (I'i'.l. (ir) The Con. Mini. Art, iH'j'i, stc. «W0. \rt{) l\|it'rty williin niiy |i)iil iculn |»nrl of oiu' (»r pMrlM nl' Iwu tuwiiMliips llu' monry Mrn',ssjM\' t<) or Im'Iwim'ii piirts td" siu'li (wo tnwiisliip.s, \t\ wliicli llic iiiliJiliit.'mtM i>r siu'li iturtswill In- sinTially Itciiflilcd. TIkv iniiy also aci|iiiri' rnails, Iniil'^i'M ami |iiiltli<' \v«»rkM lyiiiM williin out' t>i- inorc |M\vn-ilii|» ;, (owns or iiii'or|(orali i| NillaLTt'-i, )>n'ni'li(»'(| (iu'irlty (./■). 'I'lif i'onuci! ort'\fr\- cilw (own anil in('oi'|H»i-ji(»'i| xiljii"!- nrly, an chai-^.' smcIi t'\|»t'ns('s as ;i sjti'cial asscssniiMif iii;^ains!, siicli iircniiscs t,o lie li'i'ovi'ird in liki' nianni'r as ollwi' municipal ralfs {//). Inallsacli casi's the raics imposed aif a cliar^f upon tlic land, the arrears of whii-h tliexcndor sliould rcmoNi', unless it \H ai^reed Ih.'il (111' pinrliaser sliall assume fclu'iii. There are, how ever, siMiie municipal rati s which are iini a charge upon lands. The ren( payahle tor a .sewer whiili was I'oruu'riy imposed undi'r (he section corres|iondin;.,;' tu section 4fH). suh-sect ion .'M of iIk' Municipal Ac(, is (he per sonal deitt (»!' theownerol" the property and tloes notcliar;^^' the land [Z): lait such ratesarenow maile a cliai";4;e upon tin- (f) /'//,• (\»i. ^[lnl. .1. ', is'.ij, Ko.'s. (V.i'i, ('.;ia. {i/i Till' i\ni. Mini. Ait. IMI'i, srcs. I'.lt'., snl) hie. 'J;', fi'i', Hiib-sec. '.), ('I'J'). Stlb-Kt'l'. I. (:i .l/i)r)r, \, ////ij.v. 2.' V.C,. il. 107; A'.- Mi'Cii(,li,;}n if- Toioul V. C. II iU)'l .S' / (( / /•( V. i (Jr. Ill ; llmk of .Montre tl v. I'nx, (•) P. U. •217; Re .ir.nsttoivi, \i Out. H. I.m i,«H',M, iMi'i{(»vi;.Mi;Nrs int.\iNAut: .skwkuh. ir>i liiml {\ III liy | HI \ ill;.' , I i;j;lit iii;^^, i ||;ii iiiii^, nii'l utlii-i- local wnilxH, llitil. (lie \'mIi|i' ol' (,|i(; liiiiij lias Ikimi liiii^i'ly iiirrnisnj, mimI )MircliaMiT.s will lie roiiiii| who will, (III (IimI accoiml. ;;i\ f a lar^^rr price t.liaii if Mic iinpniv*' liii-!it:< liiiij iiot^ liiM'ii iii;it|i-. At (lie saiiM- tilnc tlii- hiii'l is liiirtli'iM')! with the ti'ldil joiDil lociil rate which has In cu iiiiposcti ill oi'icr lo flclray the expenses ol" (,he iinprov*!- IIIClltM. Where such illlpro\ eliie||t,H lia\e heeil <'oiiip|et,'M | |„|' oie the H'^reeiiiriil, for sale, it is to he ;;i|pposei| iJiJit, the imKjiii tjii^c Iheri'liy liesto\\e<| Upon the properly has hecn t;ily hius cliar;^iii^ the Iniel ha\e heen |»,isse(| prior to the cMiilriicI, or where the Work h.is I n cxisieiice upon ill'' eomplelioii of the work ('•); hut if t,ln! uitrk is fjoiie after the contract., tJie vendor is i;ot, l)<»iiii remove the <'liaree (,/). Aii'l this is S(», althoii'^h it is a ciiiiilil ion of the ,s;ile that tin; "taxes" nva to l)e ap|)ortioiie(|, nr that the purchaser is to piiy the "t'lvcis" IVoni the date of the iii^reeiiit'iit, tli<.' WfU'd "taxes" Itein^' r(!ferul»le to tlir; ('() IJ Vict,. Clip. :il, M-f. '2', ; now I'hr dm Mini. .It, iHiri, Mcri. ;U3. I'') I<1 Viitl. Clip IS, rice. r.MJ, Hi. to, lopi'ulo'l l)y J7 Vn t., cup. ;«•_», HCC. l.i, {(•) III- (Iniifiliin «(• llniiimtll , '>{) Out. U. 1',)'.); AimHlriinj v Aii'jtfi\ LM Out. I{. ality. Tli(! exi.stonco of such a charge im|n'-ro\ements, or the charging the costs thereof upon or against such real ]»roperty, or the fact that they ari' a charge upon oi' against such real j)roperty, s/mll not hf (lc'(')nt'(l to he rorciidiit hi/ a I'l'iuloV m' pi'rson afjrecivfj to sell, that he lidxiloite nonet to ineunihi r til)' renl pi'o/>ert>/, except to the extent that the annual or other })ayments in respect of such charge are in urrear, and inipaid.' That is to say, the future I'ates are not an incumbrance within the meaning of the covenant, though the arrears are. The matter, however, as it exists between vendor and purclu'ser before completion b}' delivery of the conveyance, has not been touched by the statute whicli is expressly confined to the I'emedy on the covenanc; and the (piestion still remains whether the vendor should not remove the whole charge, future rates as well as past, if the purchaser (<') Cnmbcrlaml v. K,'untt, IS Out. 11. 1.'>1 ; 17 App. U. ;>81. (f) .">! Vic-,t. c:ip. 1-2, so':. H'l, now The Con. Mitn. Art, 18'.f>, sec. 021 :{ rt'i|iiiros it l>efoif coinph'tion. It whh p()int»<)s.sihly. the court nii;;ht not have heen ahh' to interfere if t!ie con \e\anco haetition fiuiii the hmdowners. Tliere are, nndoul)tedly, cases wh' re tlie purchaser \v(aihl l>e entitU'd, hefore conveyanct', to the iviiioval of an incunihrniice, aUhonuh after ci'iivevance he WDuIil ht' without remedy (A). Thus, if there v-cre arrears of taxes which accumulated and were char;,jed njion the land hefiae the \'end<)r ac<|uired it, the jairchaser would, as we have seen, have an undouhted ri;^ht to their removal hefore he could he citinjielled to complete: lait il he took his con- ve\;iiice without discoverinij them (and n<» element of fraud entered into tl >• case), he woidd have no remedy upon the covenant, on ucconnt of its heini,^ limited to the acts and omissions of the veinlor. There is no inconsistency then in lea\ ing" the parties to C(jnti7ict as they please re;^arding' local improvement rates, antl at tie' same time tixini;' the pur- cliasei' with liability tlierefor if he i-omj>letes his purchase without havinyf them removed. It cannot he >()». (/() See link-, pp. 1:J!), 1 1!». I EMAGE EVALUATION TEST TARGET (MT-3) /, 1.0 I.I 1.25 \&K» 12.5 •^ 1^ III 2.2 !!: I4& 12.0 1.4 IIIII.6 V <^ /; Hiotographic Sciences Corporation 'o- ^ '. io) C'tuxton V, Macklctv, 2 Siiu. 2i2. Aud see Williams v. Cnuldock, 4 Sim. 813. (})) The lieg. Act, 18i»3, sec. 87. (q) Bee Doe d. lirennan v. (/^eiU, 4 U. C. R. 8; Brmjere v. Knox, 8 C. P. u20; Waters v. Shade, 2 Gr. 40?. (/•) Doe d. Mcintosh v. McDonell, 4 O. S. 195 ; Dm d. Auldjo v. Ilollister, 5 0. S. 73',); Doe d. Burnhani v. Simmons, 7 U. C. R. 190; Gardiner v. Jimit, 2 E. & A. at p. 204. yi ir 156 INCUMBRANCES. as between the plaintiff and the dafcndant the writ is bindin<^ from the teste ; and so if a writ be tested in the lifetime of the debtor it may be delivered to the sheriff and executed after his death and will bind the lands which wero his in his lifetime (.s). The signing of judgment and issu- ing of the writ are judicial acts, and by fiction of law relate back to the earliest moment of the day of their date. And so if judgment be signed and execution issued on the day of the defendant's death, though after it has happened, they are good, and the execution will bind his lands though in fact his representatives succeeded to them immediate!}' upon his death (t). Put the delivery of the writ to the sheriff is not a judicial act, but that of the party him- self (u). As soon as a conveyance is delivered the estate passes to the grantee, and a wi'it against the lands of the vendor placed ill the sheriti's hands after delivery but before regis- tration of the deed will not bind them (?;). But if the legal estate be in an execution debtor for a moment while there is an execution in the sheriff's hands it attaches on the land, and takes precedence of a mortgage to secure the purcliase money (v^). But a vendor under such circum- stances would have an equitable right to assert a lien upon the land for the purchase money if the conveyance and mortgage w'ere one transaction (,r). And in one case Mdiere an execution was put in the sheriffs hands against the land of a mortgagor, and the latter sold and conveyed the land to a purchaser, the mortgagee took a mortgage from the purchaser for the amount of his existing mortgage debt and (x) Doe d. Hagermnn v. Stronq, 4 U. C. K. 510. (() Converse v. Michie, 16 C. P. 167, and cases there cited. (m) Convene v. Michie, 17 C. P. 174. (r) Russell v. Eussell, 28 Gr. 419 ; Bank of Montreal v. Baker, 9 Gr. at p. 107. (ir) Ruttan v. Levisconte, 16 U. C. R. 495. See also Parke v. Riley, 12 Gr. 71 ; 3 E. & A. 215. (.r) Per Burns, J., Ruttan v. Levisconte, 16 U. C. R. at p. 499. EXECUTIONS — M()llT(;AfJED LANDS. 157 released the old mortgage, and it was held that he had not, l»y so doing, lost his priority over the execution {>/). By The Jvdlcdtiire Act, sec. 30, "An order or jud;^^- inent for alimony may be registered in any registry office in Ontario, and the rcgisti-ation shall, so long as the order or judgment registered remains in force, bind the estate and interest of every description which the defendant has in any lands in the county or counties where the registi'a- tion is made, and operate thereon in the same manner and Avith the same effect as the registration of a charge by the defendant of a life annuity." It has been held that such a registered judgment is not a judgment or execution with- in the meaning of the Act respecting assignments, hj section 9 of which the assignment for creditors is to take precedence of all judgments and executions not completely executed by payment {z). (ii) MorUjwjed Lands. When land is in mortgage the effect of a writ of execu- tion depends upon the construction of the statute making the equity of redemption saleable {a). This enactment provides that the sheriff may seize and sell "(in like manner as any other real estate might be seized or taken in execution, sold and conveyed), all the legal and equitable interest of such mortgagor in the mortgaged lands and premises." The purchaser in such a case becomes liable for the mortgage debt, and if the mortgagee enforces pay- ment against the mortgagor, he is to repay the mortgagor, and in default of payment within one month after demand, the mortgagor may recover the amount from the purchaser in an action, and until recovery the debt forms a charge upon the land in favour of the mortgagor. (y) Fisher v. Rpohn, 4 C. L. T. 446. (z) Abraham v. Abraham, 19 Ont. R. 256 ; 18 App. R. 436. (a) B. S. O. cap, 64, sees. 21-24. 158 INCUMP.IIANCES. The e(|uity of redemption, in order to be saleable under this Act, nnist a])pear on the face of the instrument ; and so, if land lias been conveyed as security by deed absolute in form, the writ will not attach (b). The decisions upon this Act have established that the intention of the legislature was to provide for the simple case of land under one mortgage, or the case of one mort- gagor and one mortgagee ; and the interest to be sold is not the interest of any one or more persons in the mort- gagetl land, nor a portion of the mortgaged land {c), but the value of the whole land over and above the mortoaoe debt {(I), or rather the right to redeem the land (e). And so when tenants in common have mortj^aged their ioint estate, a writ against the land of one of them will not bind his share (/') ; thougli it will if he make a separate mortgage of his luidivided share {[/). The reason for this is that the ecjuity of redemption is a unit, whole and indivisible, and anyone having an interest i,i entitled to redeem the whole (It). If then a portion of tlnj mortgaged lands were sold, the purchaser would have the right to redeem the whole mortgage, and to call upon the mortgagee to reconvej'' not onl}^ the portion which he had bought under the writ, but also that portion which remained in the mortgagor's hands unsold. On the other hand the mortgagor on redeeming might claim the same right (j). Again, as the purchaser is bound to indemnify the mort- gagor against the mortgage debt, the latter could, if the mortgagee enforced payment against him, compel the (h) McCabe v. Thompson, 6 Gr, 175 ; McDonald v. McDonnell, 2 E. & A. 393 ; Fitzaibbon v. Duggan, 11 Gr. 188. (c) Van Norman v. McCarty, 20 C. P. at p. 40. (d) Cronn v. Chamberlin, 27 Gr. 555. (e) Samis v. Ireland, 28 C. P. 484. (/) Cronn v. Chamberlin, 27 Gr, 551. ((/) liathbun V. Culbertson, 22 Gr. 465. (h) Faulds v. Harper, 2 Ont. R. 405, and autboritiee there cited. (i) Reward v. Wolfenden, 14 Gr. 188 ; Shaw v. Tims, 19 Gr. 496. EXECUTIONS — MORTGAGED LANDS. 159 purchaser of a portion to repay hini, and so throw the wliole of the mortgage debt upon the portion sold to the relief of the portio:i remaining unsold (J). And it follows that ii the mortgaged lands lie in difi'erent counties and are comprised in one mortgage, the writ will not attach, fur neither sheriff could sell mox-e than a portion (k). Where there are two or more mortgages upon the land in diti'ei'cnt hands it has been held that the sheriff cannot execute the writ (I), even when the execution creditor is himself one of the mortgagees (m). These decisions are not however satisfactory, and are not regarded as safe authori- ties on account of the doubt expressed in Samis v. Ireland (») whether the Act does not in effect, though not in its strict letter, extend to such cases. But where the mortgages are both in one hand there is no reason why the Act should not apply (o). And Avhere a portion of a lot o\\ned by the debtor is mortgaged, the writ will bind both the incumbered and unincumbered portions {p). Before this statute a writ of execution did not bind an equity of redemption {q), and a purchaser without notice was not affected by the writ, and the mere delivery of the writ to the sheriff was not notice to him (r). And so in cases not within the Act the Avrit has no greater effect than is given to it by the statute of Geo. 11. that is, its effect is the same as that of a writ against goods ; and the effect which a writ against goods has upon a mortgaged term of (j) Van Norman v. Mr.Carty, 20 C.P. at pp. 44, 45. (fc) Hexcard v. Wolfeuden, 14 Gr. 188. (l) Wood V. Wood, 16 Gr. 471 ; Donovan v. Bacon, in note tc last case. Re Keenan, 3 Ch. Cb. 285. (m) Kerr v. Styles, 2fi Gr. 309. (n) 4 App. R. 118. (o) Donovan v. Bacon, 16 Gr. at p. 473. (p) Samis v. Ireland, 4 App. 7* 1 18. (q) Simpton v. Smyth, 1 E. <& A. 1. (r) Bug. 521. IGO INCUMIMIANCES. years may be taken as illuHtratiiit; the operation of a writ against an e(iuity of redemption not within the lleviscM] Statnte (.s'). A judicment is at law no lien np(m a lojj^al term; and where the interest of the II, and i\ writ isHUcs n;^aiiist. Iiis lands Im'Toiu* coiivcyaiioc, it lias liccii lu'M tliat it (looH not lund tlu- Icyal estate in Iiis liands, nny i\n\ slierill' nnder tlu; writ ])asH(>H nothiii";" (d). And, siniilarly, tlie ciinitablr ri^dit of a |»iir- chascr nndcr an a^i'iMunont to Imy land, is not salcal)!*' un- ])urcliasor on account of tho existence of writs in tlic (^lierifl's lumds a;rainst his vendor was disallowed (e). Hut in Huch casos if the creditor bejjjan an action foi* e(|iiital)l(' execution in aid of his \e^n\ process he would estahlisli a lien on tlu^ proceeds (/). Where lands wore convoyed to and held in trust foi* the purcliaser thereof, anent. The interest also which the Act contemplates as exempt from execution is such a beneficial interest as would pass to the widow and heirs on the death of the patentee, and not a security for money which would rather be regarded as personalty (»'). 5. Registered clovAs. The existence on the register of a deed which does not form a link in the chain of title constitutes a cloud which the purchaser should require to be removed. The decisions on deeds of this character are by no means satisfactory, and it is to be hoped that in future a more liberal judicial policy in dealing with such cases will take the place of the narrow principles which have heretofore been laid down. In considering the subject it may be well to adopt a division which results from a classification of decided (t) Cann v. Knotty 19 Ont. R. 422. U'A IXCI'MIIHANCKS. If I caHOH, and is as lollows: — 1. I^'rautlulciit iIcimIh. 2. Deeds miuUi l»y iHiiHoiis liaviiiir !U) apparent title, sojiuitiiiu'H called bantard duL'da. .'i. Deutia voitl on tlioir t'aco. 4. Voluntaiy deeds. 1. Fraudident deeds. In casi's of fraudulent deeds Courts of l'](|uity have always exer(ris(Ml jurisdiction, iuid upon proof of the fraud have ih^erecd their cancellation (y). And so where it was alle<.jed in the bill that a j^rantoi* had made a second deed " intendinl iiiHtnuiit'iit hIiouM he cancclliMl. Hut tlio (leciHion was 1>aM»'y tim Kc'i^iHtry Act ( //* ). H. l)w«?r of attornc^y it would he seen to he; void, an), where the (hM'd was voluntary, l)ut was also alle;^ed t^j have been executed in fraud of the plaintiti'. A voluntary deefl, however, is riot now void as ai^^ainst a sub- s<'que!?t purclia.ser for value merely on account of want of consideration, if it has ])e(m executed in fjood faith and registered before tiie execution of the .second deed (q). It is not always pos.sible to ascertain from an examination of the rt'^^istered title whether a voluntary deed is or is not valid. For it fre^juently happens that a conveyance is executed pendin\it iv^istoivd Itol'oiv ivnistrati»Mi of tho lattiT. would ap[n>ar on tl\o ivjiisWr to luivo Ihh'h ivnistoivd boloro tho oxocntion iif tho I'onvoyaiu'o IVm" vahu'. In many dt-ods also tho trno ot)nsi(lor:'.tir»n is n«)t insortotl ; and a dcod voluntary upon its I'aco may hi' a t'onvoyanoo for val and rur irrstt. Ar.d yroat latitude is allowod in atltnitti evidonoo io sho'v what tho true considorat ion is {v). Tho ti'uo stato of facts in many oasos oatnu)t ho aso tainod without a jmlieial invosti<;ation : and tiioroforo it is suhmittotl that tho jurisdiot" mi of tho t'oiu't should ho oxt'i- oisod io doolaro tlii' rii;hts of tho partios and adjust thorn I tho rof^istor, ovi'U whon a (\(w\ appears on its faoo to bo Uo. or oi vtiluntarv. Thosr oasos (^oxoi>]^t thoso (d' hastard doods) liavo nil hoon dooidi'd upon l"'n^-lish autln>rity, and tho roliof askod was in oaoh »'aso tho ontK'ollatit»n of tiio dooil or similar roliol'. But a principle moro applicahlo to owv system ot' resist rat ion is that onunoiatod hy Mowat. V.C\, in Shaic V. lA'di/itrd (^.s). and Strono-. \X\, in TrKCKilcU v. C(H>h {I), namolv, that tho >'>'(fis(nitioi) o( n dvcd, thouo-h it h void in itself or the claim of tho ^•rantee therounilor entirely unfoinulod. tends to omharrass tho title of the true owner, and ontit'os him to a jud»;"n'.ont containing" a tlodaration ot" tho invalidity of tho deed which ho may n^^ister. The Court compels a vendor to make out a g^ood rogis- torod title ti> tiie purchaser hy putting; all neco.sary deeds upon registry (»). and it should give him tho correspt)ndiug relief of removing or nullifying tho etilct of deeds wronglv registered which form a cloud on Ins title. A vendor is unable in many cjises without the aid of the Court to (r) Miih'g V. .V(>/ (.'I.OIDS. 107 ('st)U»lisli to t!>o siiiisf.'ictidn of a pmvhiisor tluifc a (IoimI wroMii'Iv n'lristoivd is void and innocuous; and a woll-< !ul\ ist'd puri'lmsiM" will novor tako upon liin\si'II' thcrospon- sihility of doti'iininini;' tho validity or invalidity of a deed. 'riu< Court in oi\c oasc {i'), as \vc have socn, disiuissed th«i owniM's hill, l)ut tho dcorco was ai'i'iMiipanit-d hy a (hH'larivti(»n that it tlid so Iummuso tin* dt>t> 1 in (|Ui>stion was harndrss. A jud^nn'nt siinj)ly (U'darin*;- siu'h a dt-od void \\t)u!d bo more in liannony witii justioo to tho ical owner; ami whatovor douht may forinorly iiavo oxistod as to tho jurisdiction of tho C\)\U't to ontortiiin such an action, thort^ is no doubt that tho plaintill' has now a statutory rii;ht to sudi a judoiuont {ir). A rocont case soonis to carry out this view. Whoro a porsiin, whos(^ intvM'ost, if any, was ac([uiro(l hof*)ro tho vendor's title accrued, ^^aw a power of attorney to an am'ut to sell, ami !-o<;-istori>d it, tho (^)urt iiold that a purchaser was entitled to tho riMi'oxal of the power of attor- ney as a cloud on tho title ; and certilicatos oi lis y*< /mAw/s were treated in tho same way (.'). The case of Weir v. T/if Xii((/((r<( (ivtiiw Co. (if) cannot be accepted as a true exposition of tho law. 'I'iio plaintitV hoiui; a h<>)U( fide purchaser for value without notici' of tlio defendants' ai;reen\ont piinod pi-iority by registration, antl tho airrooniont was thorefi>ro fraudulent and void asant and voiil ordy tin ter» -s of Ids discharein^ it by payment of all sums . (.!•) R,' liohifr ((• Out. liiv. .-I.s'.s'/i,, 1(5 Out. Iv. '2")0. ((/) 11 Out. R. 700. ■ 'M ■ m^i 1G8 INCrMMHANCKS. irliof (:). Tho ao^t'ociucnt itself was rrood Itetwroii tlio parties, and should not have been cancelled ; nnd in mII cases of coinjxitino' deeds under th(^ llej^istiy Act tlio can- collation of the postponed deed would perhaps he inijjrojier. But as the Act declaivs the i)ost|)oned deed to he fraudu- lent ai\d void as iijial list a pnrr/Kfst'.r, the purchaser has jiii undouhted ri!>ht to a judicial declaration that the deed is Aa to him fraudulent and void, thus I'cniovinj^ its detri- mental elU'ct upon the title of the true owner, wlide the deed remains a. suhsistini;' instrument i iifrr /Kiiirs. G. Vendor's Jjicn. As wo have seen (a), no eipiitahle lien, cha"";o or in- terest aflectin<4' land is \alid as ajjjainst the re<^istorod title. Unless, therefore, a purchaser has express notice of a lien lie takes free from it. And that is true also of a purchasei- at a shoritr's sale, mIio, if he buys without notice of the vendi>r's lien, takes free from it; but if the execution debtor re-purchases the lan?^ v. Dowser (c) a loan company advanccjd money to pay off a vendor who had aistored. The company's agent in(]uired of one who had the custod}^ of two mortgaoes registered before the com- pany's mortgage whether they were paid off, and was told that they were, and would be discharged. He then paid the vendor and a conveyance was made to the mortgagor. It was subsequently discovered that the two prior mort- gages were not paid off, and the loan company then claimed to stand in the place of the vendor to the extent of the purchase money which they had paid him; but it was held that the lien was gone as they had not taken an {z) This however tni^ht have been amended. (a) Ante, p. 68. (ft) Van Wagner V. Findhnj, U Gr. 53. (•) 28Gr. 478. CHOWN flONFW. 10!) iiHHi^iiniont, and tlu^y woro rolcii^utcfl to their jJOHitioii of third inort^anly from the time of his l)eing added as a party (/•) ; and the p "inciple of that decisicm would apply to the present practice. An administration suit or action is a lia ])endens, where the object is to realize debts charged on land, quoad lands charged and sold under the decree or judgment {I), and presumably an administration commenced by suumiary motion would also 1)0 a lis pen- dens quoad, the property affected. But not where the purchaser has a right to believe that the sale is for the purpose of paying the testator's debts {m). By the rules of practice (n) a summary proceeding by way of motion may be taken by a judgment creditor to set aside a void conveyance, or to render an interest, not saleable under legal process, liable to satisfy the debt ; the notice of motion may contain a description of the lands and a certificate of lis pendens may issue for registration. The lis pendens would exist probably as soon as the neces- ((■) See also Metcalfe v. Pulvertoft, 2 V. & B. 205; Gaskell v. Durdiv, 2 B. & Beat. 169 ; Co. Litt. 102 a, b. ij) Drew V. Norbunj, S J. & L. 207 ; Worsley v. Scarborough, 3 Atk. 302 ; Croft V. Oldfiehl, 3 Swau. 278. Ik) Jason V. Gardiner, 11 Gr. 23. (/) Dreiv V. Norbunj, 3 J. & L. 2i)7 ; Price v. Price, 35 Ch. D. 2i)7. {m) Price v. Price, 35 Ch. D. at p. 301. (ii) Rules 1007, et seq. 172 INCUMHKANCKH. ^% aary atlidavits won^ filixl lor u.sc on tlm motion. Imt it wonld allcot parties not otlM;i'\vi,s(i notified only IVom roiTJiStration of tlu> ccitiHcatt^ HcForo tlu' Act I'l'spcetini^ rctjjiNtration ol' cortilicatcs ol' lis j)('ii-ned hy one of the oIlicerH in tlu^ [)recedin<^ .section men- tioned has heen re*;i.stered in the H«>^i,stry oliice of tht^ county or otluM' reintered mort- ^•a^es are excepted. It will be noticed that the mere brinnino" of the action or issuino- of a writ is not to be notice; but if a purcha,ser has actual notice of the actiori or proceediuf]^ in any other way, it is conceived that he would be b/ound thouj^h a eer- titicnte of //.s- prudois was not re<^istere\XYQ\\nxi(iv pendente lite is a sum- mary one. In Gaskell v. Dwrdin (s), where the plaintitl' (()) The Reg. Act, 1S93, sec. 53. (V) Walker v. Smallwood, Anib. G76. (q) Metcalfe v. Pulvertoft, 2 V. A B 200. (r) Bp. of Winchester v. Paine, 1\ Vea. 197 ; Garth v. Ward, 2 Atk. 174. (•<) 2 B. ct Beat. 167. MS I'KN'DKNS. I7'l ( Mt.'il>liHli(>(l lii.s titin to tli(! IhimIh, a Htiviiif^cr vvlio Iwul taken )| IrUHV. IVolll tlui - lishinj^ Ins title if lie could. A certilicnte of IIk pewtrvf* issued in an action in which the title to land dof^s not properly coirie in (juestion, is an ahusc! of the pivictice of the Court, and will be set aside («t), and it will not of course affect a Ixftin, fule pur- chaser; and if the action he collusive, fictitious or illusory the certificate will be set aside and a purchaser will not be bound (v). A certificate of lis nendens is a mere alleiration of a fact, i.p., that an action is pendin;^, arid the rejLjistration is designed to give notice to persons dealing with the land that some interest therein is called in ({uestion. And so it was uniformly held, before the Act to be presently noticed, tliat in a proper case for a certificate of lis pendens nothing could dissolve or discharge it but the termination of tlie action (w), even when an ofTer was made otherwise to secure (0 Moore v. McNamara, 2 B. & Beat. 186. (u) White V. White, 6 P. R. 208. (v) Culpepper v. Alitor, 2 Ch, Ca. 116, 223 ; Sheppard v. Kennedy, 10 P. R. 212. (w) Sheppard v. Kennedy, 10 P. R. 242. 174 INCL'MimANCKH. 1 tlie |)l)iintirt'(.r). It has boon likonod to an injunction (y), anut to recover a sum of money or money's worth which is charj^eable on, or payal)Ie out of, the land, or for which he claims that the land should be subject to payment, or where he claims the land itself, or in the alternative, damaj^es. In the first instance, which comprises all ca.sty of neglect to prosecute, the Court or a Judge nmy make an order vacating the certificate of lix pcndevfi at any time during the litigation ; in the second, the certificate may be vacated upon such terms as to giving security or otherwise as may be deemed just. Thus, in an action for specific performance by a purchaser, the vendor might obtain an order vacating a lis 2>endens on establishing that the plaintiff was not in good faith prosecuting his action, leaving him to such other remedy as he might be advised to ask in his action. And where an action for equitable execution against land is brought, the Court has power to vacate the lis pendens on proper security being given, thus substituting the security for the land. In such a case, also, if the plaintiff did not in good faith prosecute his action, the certificate might be discharged without terms. (x) Foster v. Moore, IIP. R. 447. [y) Per Blake, V.C., Finnegan v. Keenan, 7 P. R. 336. (z) Preston v. Tuhbin, 1 Vern. 28G. (a) Hadley v. London Bank of Scotland, 3 D. J. & 8. 63. i)«)Wi;i{. 175 Where a cortiHciiti; of I In ixindcns Iihh Ixioii ro;;iHtere«l )Ui). An•). If the husltand makes a contract for sale of his land before marrinn'e his widow is not dowablo thoujjfh hi; tile before eonveyanc(^ (/). WluM'e lantls are boiii^lit witli partnershi)) moneys, either for the purposes of the partnershij), oi* for speculation by the j)ai'tners, even thoui^h the buyini^ and s(dlin;^of land 1^' not within the scope of the jiartnership business, tlie wives of the partnt'rs are not dowable (/(). Where the husband's estate was an e(piitable one tlu^ wife, at conunon Ia,w, was not dowable, because tlie seisin was in tiie trustee or other person liavinj^ the le^^al estate. But by the Dower Act, " where a liusband dies beneficially entitled to any land for an interest which does not entitle his wife to dower out of the sanie at law, and such interest, whether wholly eijuitable or partly lej^al and partly e(iuit- able, is an estate of inheritance in possession, or eipial to an estate of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in e(iuity to dower out of the same land " (v). ((/) Ham V, Ham, 14 U. C. R. 497. {!■) Ciimminn v. Algiiire, 12 U. C. R. 330 ; Pulker v. Evau.'^, 13 U. C. R. 54(5 ; Lcitch v. McLellait, 2 Out. R. 587. (s) Leith & Sm. 142. (t) Gordon v. Gordon, 10 Gr. 466. (w) Re Music Hall Block, 8 Ont. R. 225. (v) R. S. O. cap. 133, sec. 1. i»''i\vj:i{. \1<) the Hi'isiii .stiiU'. iciiilly entitle merest, e(iuit- to an iate in lity to 3 U. C. Tlir \vi«|t>w's I'i^Iit to iImwit iImch not urisi* nntoil u\>ove. Where the wil'e joined with her hushnutl i!i ovni- veyin;;" the U>L;jil estate, his interest in tl»e himl was hy tlie nK>rt»'"H"e cotiNertecl, witli lier consent. inti> an equitable estate, anJ unless he ilieil benetieially entitleil the wife was !iot dowahkv Consequently, he ei»ul(l. after sueli a niort- I'-n'-e. alien his eiiuitv of retleuM>tion without the nee.>ssitv of the wife's joinino- to bar ilower (a). In h\>f-irst v. y.irv- i\-cl' i^h) the contrary opinion wji^ expresseil. but that case contains other elements upon vrhieh the ilecision of the }>rincipal point in i>sue niii;ht rest. Auil in lilack v. Foitn- ii'ni {(•), Flcttrif v. rriih/lc {i{),au\.\ lu' Hoherhon {t),\l was a^reeil that tht' wife was dowable in an enuity of ivilenip- tion, where she joineil her husbaiui in n\akino' the niort^'a^e. only in c»ase he died beneticiallv entitled to the huul ; and in }iea>:is v. McGuitr {/), the same principle was atiinned by the Court of Appeal. Hy the Act of lS7i>, which now forms part of the Dower Act, the tirst section is so atiected that a ditl'erent rule seems to apply to all cases arisinij thereui\iler. Section 5 enacts th.vt, " No bar of dower contained in any morti;ai;e, or other instrument intended to have the ettect of a inort- *:fa^e or other security, upon real estate, shall operate to bar such dower to any o;reater extent than shall be necessary to irive full etl'ect to the riirhts of the nun'tuaiive or irrautee under such instrument. " Section t5 eu'icts that, " In the event of a sale of the laiul comprised in such juortvjaij^e or other instrument, under any power of s;de contained therein, ov under any Icijal process, the wife o( (a) Mi)i)\it V. Thomson, 3 Or. 111. {b) 18 Ur. fill. (i) 23 Or. 174. (li) 26 Or. 07. (f) 25 Or. 27(> ; HtVirmea ibid. 4S0 ; 906 hUo i»V 11, wish, 17 Ont. K. 4'>4. {f)7 Ai>p. li. 704. UONVKH. ISl tho nun-ti;';iu>»v v>i* i;nmtv>r who sliall so l>ar \\vv ilowor it\ siK'li laiuls, shall l)o outitlotl to dowiT in any siirpluH of tho pmvhasf monoy arisiui; ivoxn siu'li salo, whu'h may remain at'tor satist'aotivMi ol' l\\o iKnvor o( tho luovtpi^oo or ;4;raiitoo, to tlu" sanio o\t<>nt as slio wouM havo boon ontitio*! to tlowoi' ill tlio land from whioh suoh surjlus piuvliaso iiuiioy shall bo I'lorivod luul tho saino ni>t Ihumi m^KI. " This Aot I'l'latos onl\' to mort''ai'os hkuIo aftor it was j>a^st',l, vi/.., llth Maivh. lS7!>(./\ Afror its onaotmont opinii>n tliiotuatcil a «;ov>d dvi\\ na to its oonst I'uotitni. In Snuirt v. >'(We-,(.N\'v \h), llr Mii'rt^ai;o to bar dowiM'. sho was fntitliMl to dowor in tht» (>nuity of ivilomption only in oaso oi \\cv husbaml s dyin^ ontitUnl thorv'to, tho tirst sootionof tho Aot applying" to oasos o( tins kiuiK in tho sami> manm'r as to all othoi- i-ast^s o( oipiitablo osfatos. In />'. ('/•(>>•/>>;''/ 1 '.X how o\ or, it was hrhl b\' l?v>vil,t.\, that inasmnoh as tlu> bar oi dowor was t»nly I'tlootnal for tho pvirpt^sosiU' tho nun'ti^a^o, tlu> wifo had a rosiduo.nanioly, tho oipiity o\' rodomption. in whioh dowor w.is not Ivirroil, and thoivforo iti any snbsotpiont ovnivoyanoo it wonld lo uooossarv for \wv to join in t>rilor tv> froo tho oqnitv o( ro- domptiiMi frv>m hor claim for dowor. t'asos of this olass aro by this dl'oi^ion trt>atod as an oxooption to tho >;viuM"al rnio laid down bv sootion ono o\' t\\o Aot, aiid as boinii' mora pvH'uliarly within tho prv>visions o[' sootion o. Tho ([Uostion tinally oamo bi>foro a IHvisional (\>nrt. in Pratt V. Ihiiiiitll i^i). whori> it was hold that th«» wifo is iv nooossary party to a oonvoyatu'o of tho oipiity of rodon:p- (;;* Martiiuh!^ v. I'/iirAwini. (> \\^y. K. 1. (/() '.» Out. K l'.4 {i) »> l>nt. H, '2'2'u (K\ If. Out. U '.'O?. [1] -n Out. U. I. M 182 INCl'MMHAN'ClvS. I turn. Street, J., iiftor roforriuj^ to previous caH(»H, procccil'wl tlnis: — " Soctiou 5 a))|)t'nrH U\ .settle coiu'luHivel}' in lavoni- of the wil'o tlie «|U('Hti<)ii jih to tlic ri^'^lit of tln^ ImHbmi'i Id oiMivoy away, witliotit his wil'eN oon(Mii'i«M>C(\ Imt i're«> from her (lower, tlie (MpiitaMe (vstnte i-eniaiiiin^ iti liiin after n mortji^ajj^i* in which she hatl joi>ie«l ; In'oatise, to hoM othi-r- wisiMVould he to hoM that th(> har of e(|uity left in him to the ])i(>judi('e of Ids wifeH dowiM' in it; auil this vvojiid Ik^ contrary to the oxi)re.s,s provision in tin* .section. An e(|uity of re joinfnjjf to har dower, is, therefoie, nnd(M* section 5, an exception to the j^imjciviI ruh; contained in section 1 of the wajue Act, winch gives a wifo dower only in those eijuitahlo estates of which \h)V husl)and dies scLseu. The result is that when; a mortgage with l»ar of «lf)wer has been made before the Act, and is still subsisting, the husband nwiy alien the land and tho wifo will bo bound though she does not Join to bar dowor. liut since tho Act, the wifo has «lo\vor in tho o(]uity of rodonj[)tion and should bo a party to a convoyanco thoroof. And inasmuch as section 5 applies only to cases in which tlio wifo joins t(» bar dower in a mortgago made by hor husband, it is apprc;- liondod that if a man before marriage mortgages his land, he may after marriage, the mortgago still subsisting, alien without joining his wife {'))}). In harmony with the decision in Praft v. Bunnell on the point referred to, tho Court also decided that in ascer- taining the g'Jta?/ finn of the dower, the computation is to be made upon the surplus only, and not, as previously held, upon the whole value of the land. (wi) Gardner v. Broun, 19 Ont. li. 202. I)(»wi:k. 1 H'.\ Wliojj laixl Ih Hold liy t\, Hli(!rifr uinlrr an n\'ri'-<\(v)\ hut u Hale lor iaxeH operaten an ati extinj^uiHliniorit of evory claim and d<'|niv('H the widow oF dow«!r (o). li(^fore the 11th of May, \KiU, it wan necoHHary to rendn the deed ( /;). I»nt Hinco that date arnl hf-fon; the Mnrrit'l WiniwiiH VrofK't'l (I Art, /SS/f, u mai-ri(!d woirian niij^lit har lu^r dow(!r in any landn hy joining with her linnl/and in a iU'Cid in whi(^h a rcdeane of dower wan containe) Tomiimon v. Hill, 5 Gr. 'i.'Jl. (/)) Seo R. S. O. cap. 1.S3, sec. 18. (7) II. S. O. (1877) cap. 120, sac. o ; HiUv. Greenwood, 23 U. C. R. 401. (r) R. 8. O. (1877) cap. 120, sec. 0, (»•) R. S. O. (1877) cap. 127. (I) 47 Vict. cap. l!l, sec. 22. (m) R. S. O. cap. 134, sec. 3. 184 INCUMIJHANCES. a formal party (v)', but tho more Mi^niii^ and acalinjr of a (Iced which docs not contain a roloa.so of dower will not divest her of her ri^ht to dower (?<>). Dower will bo barred if no action be bron^dit within ten years from the death of the huHband of the dowrcHs, nctwithHtandinn' any disability (x). But where tlic dowresH has, after the death t)f her husband, actual possession of the land, either alone or with the heirs or devisees of tlie husband, the period of ten years is to he computed from the time when the possession ceased (//). T/k' DvvoUUU)}} of J'Jsfdtes Art, /;), and that she should submit to examination as to her consent to the disposal of her property. In 1871 an amendment was made as to the moae of execution, but the joinder of the husband was retained as essential to the validity of the convej'^ance il). At this period, then, a married woman could hold her property free from the debts and control of her husband, but she could not make a valid conveyance without his assent; and he was a necessary party to the conveyance also for the purpose of conveying his own interest in the land. The Married Women's Property Act, 1872 (m), was then passed, by which it was enacted as follows : — " After the passing of this Act, the real estate of any married woman, which is owned by her at the time of her marriage, or acquired in any manner during her coverture, and the rents, Issues and protits thereof respectively, shall without preju- dice and subject to the trusts of any settlement affecting the same, be held and enjoyed by her for her separate use, free from any estate or claim of her husband during her lifetime, or as tenant by the curtesy, and her receipts alone (g) Royal Can. Bank v. Mitchell, 14 Gr. 412; Chamberlain v. McDon- ald, 14 Gr. 447. (/») Kraemer v. Gless, 10 C. P. 470. (i) Einrick v. Sullivan, 25 U. C. R. 105. U) C. S. U. C. cap. 85. (k) Ogden v. McArthur, 36 U. C. R. 246. (I) 34 Vict. cap. 24. (wj) 35 Vict. cap. 16. TEXAXCV l'.V THE Cl'ItTESV. 187 McDon- shall be a discliarge for any rents, issues and profits ; and any married woman shall be liable on any contract made by her respectinj^ her real estate, as if she were nfeine sole." Shortly after the passinf^ of this Act, a state of facts :irose winch brought before the Court of Appeal the (juestion whetlier the husband of a woman, who was married l)efoi*e tlie Act, but acquired land and died after the Act was passed, was entitled to an estate by the curtesy in the land. The Court held that the married woman's real property under this Act had all the qualities of separate estate, including the jus disponcndi ; that the wife might eithei* l)y instrument inter vivos, or by will, dispose of her real property Avithout the consent or concu)'i'ence of her husband; l)iit that, if she did not effect a disposition of her [)roperty, liut left it to devolve according to law, the husband would 1)0 entitled to an estate by the curtesy therein (//). At this time the Act re([uiring the concurrence of the husband in a conveyance of the wife's property was unrepealed ; but it was determined in the same case that the Act of 1872 made the wife's property separate estate in the largei.t sense of that term, and that there was annexed thereto the insepai - able right of alienation without the consent of the husband. In 1873 an Act was passed (o) which declared that any married woman of full age might convey lier real estate by deed, but no deed w^as to be valid unless her husband was a party to and executed the deed. In Fiivness v. Mitchell, the opinion was expressed that this Act applied only to those women who were not within the operation of the Act of 1872 (yj), that is those who had acquired property under the Consolidated Statute. The result of the legislation at this period was that a married woman who had acquired land before the Act of (h) Funiesn v. Mitchell, ii App. li. (jIO. (o) 3('. Vict. cap. 17. {2>) Per Burton, J. A., 3 App. R. at pp. 522, 523 ; and see ;;«;/• Moss, C.J., at p. 517. 188 INCUMHUAifCES. 1872, took it .siibjoct to Ium' huHbatul's cstato by the curtesy; but if hIio Jic»|uiro(l it after the Act of 1872, hIio took it as Hoi)arato cstato, and bcr huHband, thou^di entitled to an estate by tbe curtesy, was liabK^ to be deprived of it, and wouM come into tbe cnjoynienfc of it, only incase sbe died witbout havinej disposed of it by instrument ivter vivos or by will. In 1877, an ameiubnent was nuide to section one of tin; Act of 1872 (f/), wbicb was endxxlied in tbe Revised Statutt; {)'), and declared tbat notbin;^ in tbe Act containe; tbe enactment of 1872, tbat any married woman sbould be liable on any contract maile by ber respect- inu" ber real estate, as if sbe were a fi'itic sole. 'rboui>b tbe construction of section 4 of tbe Kovised Statute of 1877, is determined by Fariiess v. Mifr/tell, wbich is fortified by tbe words added by tbe amendment of 1877, it is to be observed tbat a very important alteiation was made as to its application; for, wbile tbe Act of 1872 applied to women married at any time, tbe Revised Statute restricts tbe operatiim of tbe clause in (juestion to women married after 2nd March, 1872. Tbose who were married before that date, acipiiring land after tbe cominrr into force of the Revised Statute, took it under tbe law as it existed before tbe Act of 1872. Tbose who were married after tbat date held their lands owned by them at tbe time of their mar- riage or ac(]uired thereafter as separate estate, and tbe estate by the curtesy would arise only in land undisposed of by instrument inter rivos or by will. There remains, however, a third class fis to which an important question arises, namely, women married before (q) 40 Vict. cap. 7, Sched. A (150). (r) R. S. O. (1877) cap. 125, sec. 4. • («) Sec. 19. TKNANCV MV TIIK CUUTKSV. IS!) the Act of 1872, w'lu) ac(|uiro(l land ul'ttir that Act, aii«l letaiiHMl it until al'tor the Ruvi.sed Statute of 1H77 canio into foict'. During the jnuiod between the Act of 1872 and the Uovised Statute, they (on the authority of Fnriifss v. Mifchdl) hehl land thus accjuired as .separate estate; and the ((uestion arose on the coining into force of the litivised Statute, whether the third section, which applied to women iniiiried on or befon^ 2nd Maich, 1872, and which was the mwn- in eH'ect as the Consolidated Statute, 185J), rendtired their lansition takes effect free from any claim of the husband or the eldest son or other heir-at-law ; but that where she i\\i:H without making any such disposition, the rights of the husband and rights of the heir are ecjually unaffected, and efjuity ought to follow the law." And in Hope v. Hope (h), where the direct question arose between the heir and the husband, under the English Act of 18S2, the same result was arrived at. We may therefore come to the conclusion that the wife may dispose of her separate real property by instrument inter vivos or by will, without her husband's consent, and so may deprive him of his interest therein ; but if she dies intestate he will Ije entitled to an estate by the curtesy, subject to the pro- visions of section twenty-two of the Act in favour of her legal personal representative. As it was said in the ca.^'i^s ciu.'d, the Married Women's Property Act does not interfere with the course of devolution of the estate on the wife's death, but, in the absence of a disposition by the wife, leaves the estate to devolve in the ordinary course of law. Then, as between the heir and the husband, there is no reason for excluding the latter from his estate by the curtesy. If she makes a contract for sale of her land, it may be enforced against her, or she may enforce it, as if she were (/() L. R. (1892) 2 Ch. 336. TITLES — 13 194 INCUMBRANCES. B,fertie sole ; and it must be conceded that if she has power to enforce such a contract against a purchaser, she must have power to convey to him an unencumbered fee simple, for he could not be compelled to take her land subject to an estate by the curtesy. Attention must now be called to the twenty-second section of the present Revised Statute. By this section it is declared that " for the purposes of this Act the legal personal representative of any married woman shall, in respect of her separate estate, have the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living " (i). This clause was in force for two years before The Devolution of Estates Act was passed, and in its operation affects the property of all mar- ried women w ho died during that period. Since the legal personal representative is here mentioned, the question immediately arises whether it was intended that the real property of a married woman on her intestacy should in all cases devolve free from any estate of her husband (j). In order to give full affect to this section, and clothe the personal representative with all the rights and liabilities of the married woman, it seems to be necessary to accord to ban all those rights, and visit him with all the liabilities, which arise out of those sections of the Act which defin'^ them with respect to the married woman herself, namely, the right to hold and dispose of her real property, make contracts respecting it, and sue and be sued apart from the husband — in short to deal in all respects with the land as if it had belonged to a feme sole. But to what extent and for what purpose do those povi'ers exist ? In Hope V. Hope {k), the right of the husband as against the heir-at-law arose in a direct form, the action being a friendly one by the heir-at-law against the husband to try (t) R. S. O. cap. 132, sec. 22. (j) Lennard on position of married women, 107. (k) L. R. (1892) 2 Ch. 336. TENANCY BY THE CURTESY. 195 whether the estate by the curtesy existed ; but the section in question, as far as the report shows, was not mentioned in the case. In Re Bellamy (l) and Sumian v. Whar- ton (m), it was held that the husband of a married woman entitled to leaseholds dying intestate, succeeded to them jure mariti without taking out letters of administration ; and in the latter case, that the property was in his hands as personal representative of his wife, for the purpose of satis- fying an obligation incurred by the married woman with respect to her separate estate. But in neither of these cases of course (the property being personalty) is the right of the husband to the estate by the curtesy mentioned. The point is therefore untouched by authority ; and the view here presented is offered with great diffidence. Although the clause in question does not expressly declare that the estate vests in the personal representative, it is a necessary inference chat he must have either tho power of voluntary alienation, or be subject to involuntary alienation at the suit of a creditor. A similar enactment is that which, without expressly declaring that the legal estate in lands held in mortgage vests in the executor or administrator of a mortgagee, enables his personal representative to convey, assign or release the mortgagee's estate in the lands {n). If, then, the personal representative succeeds to the estate, he must hold it for the purposes of administration only. It may be that he has power, under this clause, to sell the land free from the estate of the husband (in the same manner as the married woman could have done) for the purpose of paying the obligations contracted by the married woman with respect to her separate estate ; and the property may also be liable to be sold, under process against the administrator, free from any claim of the husband's. But if there are no liabilities to be satisfied, or (/) 25 Ch. D. 620. (m) L. R. (1891) 1 Q. B. 491. (n) R. S. 0. cap. 110, sec. 16. T 196 INCUMBllANCES. if, after the liabilities have been satisfied, there is a surplus, the administrator would hold in trust for those persons whose ricfhts are subordinate only to the claims of creditors. And, as the course of devolution of the estate is not other- wise interfered with by the Act, there is no reason for depriving the husband of his life estate, and he would then be entitled to call for the proper conveyance (o). By the Trustees and Executors Act (p), where the owner of land dies under a liability to convey in pursuance of a written contract, either intestate or without haviiifr made any provision by will for a conveyance, his personal representative is the proper person to convey. This enact- ment is wide enough to include the case of a married woman dying under such a liability ; and n ading the twenty-second section of Tlte Married Worneii.: .l ropcrfi/ Act with the statute last mentioned, there seems to be no doubt that under such circumstances, a conveyance would be made free from any estate of the husband. Since the passing of The Devolution of Estates Act, 1SS6, the real estate of a married woman upon her death devolves upon her personal representative whether she disposes of it by will or dies intestate. If she disposes of it by will, it appears, as we have seen, that she deprives her husband of his estate. In the case of a married woman dying intestate after f' first of July, 1886, there is a doubt, notwithstanding U.; Act, whether her husband may not take an estate by tin curtesy in her separate estate. The Act applies to " the estates of persons dying on or after" the first of July, 1886 (q). By section five, " the real and personal property of a married woman in respect of which she has died intestate shall be distributed as follows : one-third to her (o) Re LamberVx Estate, 39 Ch. D. 626 ; Re Bellamy, 25 Ch. D. 620 ; Stirman v. Wharton, L. R. (1891) 1 Q. B. 491. (p) R. S. O. cap. 110, sec. 26. Iq) R. S. O. cap. 108, sec. 2. TENANCY BY THE CUUTESY. 197 huKband if she leave issue, and one-half if she leave none; and subject thereto, sliall go and devolve as if her huf). The rights of the parties, where there is no express contract, arise not ^'"om the construction of the grant itself, but from the position in which the parties have placed themselves by the contract, taking into consideration all the surround- ing circumstances (c). So, where land, with buildings erected thereon, was granted as part of a large tract which was evidently designed for Ijuilding on, it was held that, as against the grantee of the buildings, whose windows over- looked the remaining portion, the grantors and those (x) Carter v. Grasett, 11 Ont. R. 331. (y) Birmingham, etc. Co. v. Ross, 38 Ch. D. 295. (i) Wheeldon v. Burrows, 12 Ch. D. 31 ; Russell v. Watts, 10 App. Ca. at p. 596. (ei) Allen V. Taiflor, 16 Ch. D. 355. (b) Russell V. Watts, 10 App. Ca. 690. (c) Birmingham, etc. Co. v. Ross, S8 Ch. D. at pp. 308, 315. EASEMEN'TH. 201 ilding.s which lat, as over- thosu .pp. Ca. clahnin^ uiuhu" thom woro not prochidod from erecting Huch buihliiigH an they might chooso upon the remaining portion ; tho extent ol' the riglit of the grantee of the buildingH being to enjoy HUch an amount of liglit as would reach his windowH after liis grantons, or those cbtiming under them, had erected such buildings as tliey might choose in pursuance of Uieir scheme. Similarly, where a railway company sold a liouse with surplus land, and the conveyance contained a recital that the remainder of the land ac(|uired by them would be re(|uired for the ptirposes of the railway, it was held that the railway company were impliedly bound not to obstruct their grantee's light and air excei)t by tlie construction of what might be reasonably recjuired for the railway ; but tlmt the grantee of a portion of the remainder (which was subse(juently founsently noticed, that the registration of a plan and sales made in accordance with it did not constitute a dedication of the streets and lanes as highways {u). And that is still the case with regard to registered plans in townships. But with regard to cities, towns, and incorporated villages (r), it is enacted that, " All allowances for roads, streets and conmions, surveyed in cities, towns, and villages, or any pari thereof, which have been or may be surveyed (ij) Carey v. City of Toronto, 11 App. R 416, affirmed by the Supreme Court on other grounds, though three Judges of the Court agreed with this view : 14 S. C. K. 172. (>•) Re Morton lO St. Thomas, App. 11. 323. (.s) The lieq. Act, 1893, sec. 102. See Re Chhholm cC- Oakville, 9 Out. E. 274 ; 12 App. II. 225 ; and R. S. O. cap. 152, sec. G5. (t) R. S. O. cap. 152, sec. Go ; The Reg. Act, 18!)3, sec. 102 ; Roche v, Ryan, 22 Ont. R. at p. 101). (h) Re 2Iorton d- St. Thomas, 6 App. R. 323. (v) Hamlets, or unincorporated villages, are not included in this enactment : Slditzsky v. Cranston, 22 Ont. R. 590. EASEMENTS. 205 and laid out by companies and individuals and laid down on the plans theniot", and upon which lots of land fronting' on or adjoinino- hucIi allowances for roads, streets and commons have been or may be sold to purchasers, shall he inihlic A/// /ttt'(t>/s, streets and conn nons ; and all lines which have been or may be run, and thv. courses thereof ^iven in the survey of such cities, towns, and villaoes, or any part thereof, and laid down on the plans thereof, and all post., or monuments which have been or may be placed or planted /'// the first sarvej/ of such cities, towns, and villai^ijs, or any part thereof, to designate or detim^ any allowances foi* rouds, streets, lots or connnons, shall be the true and unalterable lines and boundaries thereof respectively." It has been held that this enactment applies to a privat«; survey, or sub-<]iviHion of land in a municipality which has lieen already laid out, and is not confined to an original survey of such city, town, or village, n(jtwithstanding the reference to the boundaries and monuments in the first or original survey (iv). Consequent!}', the streets become vested in the ci'own or the nmnicipality, at any rate are subject to the control of the numicipality, by the I'egistration of the plan, but the municipality is, by the same enactment, not liable to keep them in repair until established by by- law of the corporation, or otherwise assumed for public use l)y such corporation as provided in The Municipal Act. The unsatisfactory result of these decisions is, that upon registration of a plan, the streets become public highways and vest either in the numicipality or the Crown (.'•) ; but the numicipality is not liable to repair them unless and until it has accepted them by by-law or otherwise assumed them as highways. Notwithstanding this, the owner retains such an interest in them that he can on a proper ("•) Gooderhnm v. Toronto, 21 Ont. R. 120; 19 App. R. 041; appealed to the Supreme Court but not yet disposed of ; Roche v. liijan, 22 Ont. R. 1U7. (j) The Consolidated Municipal Act, 1892, sees. 525, 527. 20(i INCrMimANCKS. appliciitioti to )i county 'niy oIImm- liunls of his, so that tlic •irautce cannot reach his land without •roiu'T over the snr routidin;; land, then he has a wmv of i\ecessity over I lie sin'rouuilin;:; hind to and from the landdttcked parcel. It, exists only when a i;rant can he inijilied (7).and one Imudred jicres to his two sons, to each n|' them lirt\- ;\cres, and thev partitioned the land in such a way th.'it one of them had to pass oNcr the others p(»rti(>ii NO as to reach the highway, it was judd that the eirect of the devise' and jiai'tition was to create a wa' of necessity to and from the landdocUed ])air(d () ; nor will the ri<;ht ai-ise when the necessitv is created hvthe grantee's own act, as wdieri he Ituiltis his I louse so that t- le re(iuires to <:'(> across another s th land in order to ;^et to the hii^hway {<■). \Vheri> a n'rantee is entitled to a way of necessity over the irrantor's laud the latter h;is the I'ie'ht to select tin,' way (r V. ('()()/»!'(•, 2 Out. H. ;i'.)S ; H App. H. 707. Kcio l.tipton v, liaiihiii, 17 t)iit. K. iV.I'.t. (d) lU.raii V. Cnn's, 4 Out. H. Kl"). See also Uriihin v. Scninirii:', I'.t Out. R. ")22. (h) City (\t' lldntiltiiii V. Morrison, is (j, 1'. at j). "i'ii; Ifoliiii's v. (lorin'i. 2 Bin^'. 7<; '; jio.id v. Jiitr.'hrll, 1 II. iV C. 113 ; I'lici/nci/ v. I'/lvu'//, KJ M. ,V W. 184. ((•) Rolwrt.i V. Kiirr, 1 Taunt, at p. 408; norloic v. Uhodrs. H Tyr. at p. 281, wliero liiiylov. B., in aiiswor to tlio ar^unu'ut tliat tliero whs it way of necessity, because a blind wall abutted on tlio highway, said tiic defendimt mif^iit make a way by breaking' throuj^ii his wall. (d) liolton V. Jlolton, 11 Ch. D. Wti. i; A si: mi; NTS. 207 tin- j;rmit('(' (r), tliuu^Mi a nwisfmuldy rofivttiicufc ono hIkmiM !.<• uHHijjtu'd b) liiiii ( /'); uiid if the /^'ruiitftrdor.s not Hclort a \v»iy the ^^niiitfc iiDiy doso ((f), Thr ri^dit. to hih-Ii a way is (rocxtcriHivt' witli llir nciCJ'M- h'\ty und rxciTiHahlc (tidy while ili*' urccHsit}' cxiHiH ; and sr», when tln' owner <»!' Uh" dMiniiiant tfncrncrd, a('.(|uirt',s the iiifUiiH of |ia.s,siii;f to tli(! lM;4liWfiy wiMwdit usiti^r tlic way, tli<- ii(T«'s,sit,y for the way hcinjr ndn,. (,li,. |-i^r|,(, ('('(iMfH with it, (//). I'.iit chan'riiio- the locidiiy of the way Troin Ijni.- to titnr does not tlnHtroy the I'i^^lit of way; nor whiT<^ n, <^n-ant, of a s[M'cifi<' way is made, and a |tiirchM,Mcr *»f th*- dominant tcncMK'nt l>iiyH it without notice of the ;;rant, is th(! way l.y n<'(TH,sity lost (/). It is said tlint the way must ho siiitahic for the puijioscs of the pcrHon rciiuirin;^ it at tho fiiiK! it is ci-catt'd n\u\ not for jdi jiuritosfs; or, in othci- words, the ri^ht is to he ni(!aHurii.iU'y,H Or. 'J."<7, (.'/) Fii'lilir V. linniiixtfr, H (Jr. at p. '21)1, citinv; I'.uhrr v. If'dUtfd. 2 Hid. HI ; Di.niit V. C'n-.s.s, 1 Out. K. UW,. {h) Ilohiii's V. (iDriiir/, 2 Hin^^. 7(). (/) Di.ron V. Crnsx, 1 Out. 11. -ICr,. ij) 'i'njfonl V. Miilfiitt, i (111. App \H:\\ Citif «f Lnii.hHt v. liUifjx. 13 Cli. l>. 7'.H ; Midbtnd III/. Co. V. Miles, Xi Cli. D.' al p. fill. Cf. nirmiiw- ham etc. Co. v. IIohh, H8 Ch. D. 'J!>;1. (A-) Ilolmen v. Gnriiii/, 2 Bin;.,'. 70; />'((/.'«• v. ,SVar, 7 Kq. 427; Citi/ of London v. Ilitjijs, 13 Ch. D. TJS; Turnhull v. Mcrnain, U U. C. li. 2t;o. 208 INCUMBRANCES. 1;l WA authcities are founded upon cases (I) which contain mere dicta in support of the right and which have been sharply criticised by Serjeant Williams in his note to Pomfret v. Microft (m). " As if," says the learned Serjeant, " a self- created necessity could be, either in law or reason, any justification of a trespass committed on another's )md." Pinninqton v. Galland (n), which professes to follow Ser- jeant Williams as an authority, does not observe that he disapproves of the doctrine entirely. And in Wheeldon v. Burrows the latter case is cited with approval as being founded on Serjeant Williams' note. The existence of the right is certainly opposed to the doctrine that a man may not derogate (rom his own grant, and to the dictum of Lord Ellenborough that a man can not by his o^^^n act create a way of necessity (o). It may also be worthy of observation that a way is not, properly speaking, the subject of either an exception or a reservation; and if it may not be expressly reserved or excepted it cannot be reserved or excepted by implication. An exception must be of a part of the subject of the grant which does not pass thereby but is severed and retained hy the grantor {p)\ and a reservation is properly made of something issuing out of the thing granted {q). If a way were expressed to be reserved or excepted the words might operate as a re-grant if the deed were executed by the grantee (r). It jeems that such a way exists as incident to a grant and must be pleaded as arising out of grant (s). But Vl the deed is silent as to a way and is not (l) Clarke v. Cogpi; Cro. Jac. 170; Staple v. Heydoi, 6 Mod. 1; Chichester v. Lethbridge, Willes, 72, 73. (m) 1 Wm. Saund. 571. (n) 9 Ex. at p. 12. (o) Roberta v. Karr, 1 Taunt, at p. 4i98. ( p) Touch. 77. {q) Co. Litt. 47a, 143a ; Touch. 80. (r) Wickham v. Hawker, 7 M. & W. 63 ; Wilson v. Gilmer, 46 U. C. R. 645. {t\ romfret v. Ricroft, 1 Wm. Saund. 570, note ; City of London v. Riggsi 18 Ch. D. at p. 806. MECHANICS LIENS. 209 executed by the grantee, it seems impossible to imply a re-grant. And if the right exists in such a case it must be based upon the bare necessity and not upon the implication that it arises by grant (t). The modern cases treat it, however, as arising by implied re-grant. When a way arises by implied re-grant or reservation the grantor is limited to such a way as was necessary at the time of the grant and cannot claim a way for all purposes (?.t). 12. Mechanics Liens. The most dangerous incumbrances are Mechanics' Liens, for they arise in favour of the lien-holders by virtue of their being employed upon the work of building, or of furnishing material, and they exist for thirty days after the comple- tion of the work or the furnishing of the material without registration. For the purposes of title the subject may be considered under the following heads : — 1. What constitutes a lien. 2. On what the lien attaches ; duration of the lien ; registration. 3. Mortgaged lands. 1. What consbitutes a lien. — Unles he signs an express agreement to the contrary every mechanic, machinist, builder {v), miner, labourer, contractc •, or other person doing work upon, or furnishing materials to be used in the construction, alteration or repair of any building or erec- tion, or erecting, furnishing or placing machinery of any kind in, upon or in connection with any building, erection or mine, shall, by virtue of being so employed or furnifih- ing, have a lien for the price of the work, machinery or materials, upon the building, erection or mine and the lands (t) Pom/ret v. Ricroft, 1 Wm. Saund. 573, note. (u) City of London v. liigrs, 13 Ch. D. 798. (v) This includes an architect : Arnoldi v. Gouin, 22 Gr. 314. TITLES— 14 .lL.^ 210 INCUMBRANCES. occupied thereby or enjoyed therewith, limited in amount to t^o sum justly due to the person entitled to the lien ()/•). All persons, also, who perform labour for wages are entitled to a lien for thirty days' wages, or a balance equal to waoes for thirty days ; and the lien for wages attaches when the labour is in respect of a building, erection or mine on property belonging to the wife of the person at who^e instance the work is done, upon the estate or interest of the wife in such property as well as upon that of her husband (x). The lien, it will be seen, arises by virtue of being em- ployed, or furnishing material. It would seem, therefore, that the contract of employment or furnishing of material at once creates a lien ; the lien also operates as a charge on the price to be paid, and is discharged pro tanto by pay- ments (y). The lien must arise out of a contract by the owner, and cannot arise from a contract by a complete stranger to tlie title (s). Bearing in mind that the object of the Act is to create a lien on buildings and land, and that no one but a person having an interest in the land can charge it, and that the lien will attach only on the estate or interest of the owner as defined by the Act (a), it becomes of importance to ascertain who is comprehended in the definition of " owner." By the interpretation clause of the Act, owner is defined to be " a person having any estate or interest in the lands upon or in respect of which the work is done, or materials or machinery are placed or furnished, at whose request and upon whose credit or on whose behalf or with whose privity or consent, or for whose direct benefit any such work is done, etc." The lien, therefore, can only arise (w) R. S. 0. cap. 126, sec. 4. (x) Ibid. sec. 6. (y) Ibid. sec. 9(2). (z) Wagner v '. Jefferson, 37 U. C. R. 657. (a) Sec. 5. MECHANICS LIENS. 211 out of a contract with a person having an interest or estate in the land. Where the lien is for wages, however, and the contract is made by the husband of the owner of the land, he may by his sole contract bind the estate or interest of his wife as well as his own estate or interest in the land (6). While the right to the lien is, by force of the Act, attached to the contract, yet any person otherwise entitled to a lien under the Act may, by express agreement, deprive himself of the right to a lien ; but such an agreement will not deprive any party otherwise entitled to a lien of his right thereto who is not a party to the agreement (c). 2. On what the lien attaches ; duration of the lien ; regis- tration. — Sections 4 and 5 of the Act define the property upon w hicli the lien attaches. By the former, it is declared to attach upon " the building, erection or mine, and the lands occupied thereby or enjoyed therewith." By the latter, it is declared to attach "upon the estate and interest of the owner, as defined by this Act, in the building, erection or mine . . and the land occupied thereby or enjoyed therewith." In case a person having only a partial interest in the land were to make a contract for the building thereon, the question might arise, whether the lien would attach on the whole building, or on the estate or interest only of the owner in it, assuming that the building when erected became part of the freehold. Section 5 would probably govern. It defines with particularity that interest upon which the lien is to attach, while section 4 is a general enactment creating the right to a lien. In cases where the estate or interest charged is lease- hold, the fee simple may also be charged, with the consent of the owner thereof, provided that such consent is signified by the signature of the tenant in fee upon the claim at the time of registering it and is duly verified. In order to (b) Ibid. sec. 6 (2). (e) Ibid. seo. 3. 212 INCUMBRANCES. charge the fee simple it is necessary that the provisions of the Act should be observed ; and where the lien-holder claimed a lien on the fee for furnishing bricks to a tenant for years with an option of purchase, it was held that the fee was not charged though the tenant in fee was aware of the building, which was in fact being done in pursuance of a parol agreement made with him by his tenant (d). Inasmuch as the lien is the pure creation of the Act, and power is given to charge the fee simple only by con- sent, it would seem that if a tenant for years held under a tenant in tail or for life, the estate of the latter could not be charged by consent, but only by a contract for building ma,de with the tenant in tail or tenant for life. When the lien attaches upon an estate or interest in land, the land subsequently devolves, after commencement of the work, or furnishing material, subject to the lien. Section 5 declares that it shall attach upon the estate and interest of the owner, and by section 1, sub-section 3, owner includes "all persons claiming under" the person whose contract creates the lien, " whose rights are acquired after the work in respect of which the lien is claimed is com- menced, or the materials or the machinery furnished have been commenced to be furnished." Assuming the lien to attach as soon as the contract is made, if the estate devolves | upon another before the commencement of the work, then it apparently passes free froir the lien. At any rate, whether it attaches at the date of the contract or at the date of the commencement of the work, the statute includes those only whose rights arise after the commencement, and | charges their estates or interests only. It will be seen, also, in dealing with registration of liens, that a purchaser | without notice will gain priority if the lien is not registered, The lien will not attach on lands which are not subject | (d) Graham v. William, 9 Ont. R. 468. MECHANICS LIENS. 213 to execution ; as a public school building and site (e) ; nor on lands of a railway company required for the purposes of the railway (/). As to the area or extent of land upon which the lien attaches. It will be observed that the Act gives a lien upon the building, erection or mine, and the land occupied thereby or enjoyed therewith. It must necessarily, there- fore, be to some extent a question of fact as to how much land is enjoyed with the building. Where the land is divided into building lots, and a house is built on one of the lots, there would not be much difficulty in holding that the lot was subject to the lien. If more than one house were built on a lot, probably a proportionate division would be made. But if a second house were built on a lot under a separate contract after the first had been completed, and Hens had attached under the first contract, complications would arise which could not easily be settled. Where separate buildings are erected for the same owner under separate contracts, the contractor cannot claim a lieu for one gross su^-^ on the whole land, at any rate unless the claim shows how much is claimed under each contract. In such a case, Proudfoot, V.C., said, " There is nothing in the Act to shew that it was intended to give a lien upon one piece of property for work performed upon another. If there be several contracts for the erection of buildings, I apprehend there must be a distinct registration as to each, or at all events there must appear in the instru- ment registered data from which it may be ascertained how much of the lien is applicable to each. . . Nor does the fact of the buildings being upon the same lot offer any reason for it. The buildings are distinct, the land occupied by them is distinct, and that usually enjoyed with them must, for this purpose, also be considered as distinct " {g). (e) Robb V. WoocUtock School Board, Holm. Mech. L, p. 20. (/) Breeze v. Mid. R. Co., 26 Gr. 225 ; King v. Al/ord,9 Ont. R. 643. (g) Currier v. Friedrick, 22 Gr. 243. 214 INCUMBRANCES. The effect of the registry laws upon liens must now be considered. The Registry Act may be treated as a funda- mental or organic law affecting all dealings with land. But, notwithstanding that Act, if the liens created by the Mechanics' Lien Act had been preserved by that Act as liens arising and existing apart from any written instru- ment, and by virtue only of the employment of labour or the furnishing of materials, it is probable that the Registry Act would have been held not to apply to them at all. Befo.'e the Registry Act affected equitable interests in land they were held not to be within its scope, if they were not evidenced by instruments capable of registration. Thus, an equity to reform a mortgage (h), and an equitable mortgage by deposit of title deeds (i), were held not to be within the Registry Act and not affected by subsequent dealings with the land. And even under the presont registry Act an easement created by severance of a tene- ment, not being capable of registration, is not within the Act, and is not defeated by subsequent dealings (j). By the Mechanics' Lien Act, however, registration is applied to liens for two purposes ; (i) in order to preserve the existence of the lien, and (ii) in order to preserve its priority. (i) The preservation of the lien. — The lien, in the tirst place, is created and exists without writing. It may, how- ever, be put in the form of a claim for registration (k), and may be registered either before or during the progress of the work, or within thirty days from the completion thereof or from the supplying or placing of the machinery (/). If the lien is for wages, under sections 6 or 9 of the Act, the claim may be registered at any time within thirty days (ft) MeMaiter v. Phippt, 5 Gr. 361. (i) Harrison v. Armour, 11 Gr. 303. U) Israel v. Leith, 20 Ont. R. 361. {k) B. S. O. cap. 126, sec. 16. (0 Ibid. sec. 21. MECHANICS LIENS. 215 after the last day's labour, or within thirty days after the completion of the building or the placing of the machinery, but so that the whole period shall not exceed sixty days from the last day's labour (m). If registration does not take place as required, the lien absolutely ceases to exist on the expiry of the time during which it might have been regis- tered, unless in the meantime proceedings have been taken upon it and a certificate of lis pendens registered (71). If the lien has been duly registered, it still expires, unless proceedings are taken and a certificate of lis pendens is registered within ninety days from the completion of the work, etc., or the expiry of the period of credit, where the period is stated in the claim registered (o). If there is no period of credit, or if the date of the expiry of the period of credit is not stated in the claim registered, the lien ceases after the expiry of ninety days from the completion of the work, etc., unless proceedings are in the meantime commenced (p). If the requirements of the clauses respect- ing registration are not observed, then the lien ceases to no ' exist as against the owner, using that term as defined by the Act. (ii) Priority. — Inasmuch as the term " owner " includes those claiming under the original owner, whose rights are acquired after the commencement of the work or the fur- nishing of material, their priority is thus indij'ectly affected by non-registration. Or rather, the lien having ceased to exist by non-registration, they may disregard any such claim when purchasing. It is when a transmission of interest takes place w'^jhin the time for registration that difficult cases of priority arise. As already shewn, if the Registry/ Act had not been (m) Ibid. sec. 20. (n) Ibid. sec. 22. (0) Ibid. sec. 23. (p) Ibid. sec. 24. 28 Gr. 80, 839. See Burritt v. Renihan, 25 Gr. 183 ; Neil v. Carroll, 216 INCUMBRANCES. invoked by thi.s Act, it i.s |)r<)bal)le that it would not have applied, aH the lien at first exists in a foi'ni incapable of re<(istration. We must therefore consider how far this Act has made refjfistration applical)le for the purpose of preser\ - in«]f priority. The sections which provide for registration within a specific time, which have been already consideicil, were passed, it seems, for the purpose of preservinj:^ tin- existence of the lien beyond a certain period. The consc- (juence of not registering is that the lien ceases to exist as against the first and all subse(]uent owners. This perio7'o Uinto, and within the provisions of the R('(jisfri/ Act." The ordiniiiy effect of declaring that an instrument may be registered is immediatoly to make applicable all the provisions of the Rer/lstri/ Ad. The lOtli section, above quoted, goes (q) The Reg. Act, 1893, sec. 87. MECHANICS IJKXS. 21: fui'tlicr and cxprossl^- iiiakt'S the l{>ylsfr>/ Acf ajiplicahlt;, and further iiiak(;H tlic lien hohh'r a jmrehasei' y>/v> tmtto. Whether the effect of this si'ctioii is to make the lien holder a purchaser only at and from the moment of )-e<;istration, or to make him a purchasei* from the time of the creation of the lien and suhject to the pr'istered durin;.,^ the progress of the work, it seeiiis therefoi'e to retain its priority over unref;isteresler, J. A.. McSamura v. Kirklaiul, 18 App. R. at p. 2("7. (!) Couk V. I!,'hhair, 23 Ont. R. 515. (") Sec. 5, sub-sec. 3, 218 INCIMMHAN'CKS. arises, not one for which prioi-ity is ohtainod hy iL'rjistra- tion (r). And in onler tiiat the lion may rank on the increased selling value, it must appear that the selliny; value lias in fact been increased and not only that the work has been done so as to entitle the workman to a lien. So, where a mill subject to a mort;;age was to bo converted from a stone Hourin<; mill into a roller mill,any the Act of 1893 (,<.•), where a mortga^^e is given to secure an intended l(ja!i to be advanced as the work progresses, no advance made by the mortgagee shall have any priority over the claims of mechanics if the mort- gagee has actual and express notice that there are such claims unpaid; nor unless at the time of the advance he shall take from the mort'rau'or an affidavit or declaration tliat all such claims have been paid in full. If an unfinisht'(l house in a city is sold or mortgaged, then if its unfinished state is apparent to an ordinary observer, the purchaser or mortgagee, before advancing any money is to re(|uire from the vendor or mortgagor an affi- davit or declaration that all mechanics' claims have beou paid ; and he shall not be entitled to ])riority over such claims, if at or before the time of making his advance ho has actual and express notice of the claims ; nor unless he shall have received such affidavit or declarat'on. This enactment would soem to lend colour to the view that in other cases a reiristered mortffaj^ee would ol)taiu priority for advances from time to time even though hu (r) Cook V. lUlnhaw, 23 Ont. R. ')4r>. (!(•) Kennedy v. liaddow, 1!» Ont. II. 240. (x) 5G Vict. cap. 24, sees. et neij. MECHAXICS' LIEN'S. 211) iniifht have notico of .subsc'inu'iit liens, contrary to the o])inion oxprosstMl in Cook v. Jidshow (//). By section .'}(), Hnb-sections 7 and M, of the Act, the court may receive security or payment into court in lieu of the amount of the claiu), and may thereupon vacate tiie re;,nstry "f the lien: or it may ui)on any other ,i,q-ound annul the r. ;,dstry. On an application l.y a mort<;a«,a-e who had sold the land, the liens retristered were vacated, the surplus moneys realized by the morti.s( iiAiKJKs (»r moi!T<;a<;i:.s. 1. TkijiJif to I'fcoii I'cijii ni'i\ 2. L'iicff(itsty incaiiH <>r the statutory ecM'titicaio of ), -jr an assiu-nmcnt of the moi'tira^xe pursuant to the ])rovisions of 'Hic Morh/ai/i' Act. 2. I'Jff'cct of stdf atari/ iH.^c/ni riji'. By section 7G of T/tc Rajisli'if Ari, l^^ihi whciv a registered mortn'aoe has been satisfied, the rei;isti'ai-, on receivini; a certificate executcMJ by the mort<;'ageo in the form <,dven by the Act, or to the like effect, is to register the same, " and tlie same shall be deemed a discliargc of the {a) Ui'. Music Hall Block, 8 Out. 11. 22.") ; 7V«s^ i^- L. Co. v. Gallagher, 8 P. K. ;»7. (?') McLi'llau V. McLcini, 27 Gr. .>t. KKKKcr (tF STAIITOI'V I>|S(|| AliCK. 221 ii.ort;:n^re. uu.l tlu- certilicutc s.. iVMistuivl sl.ull l,,- as vali.l aii'l cirrc-tuul in law as u ivl.s-is.. ,»f tlio iiiurtMa;;,., aii.l us ji conveyunc to tlu- iuort..a-or, his li.-i.s, r.x.r.itT.rs. a-liniii- istnitors, or assv^us, ..i- any imtsom lawlullv cluimiiP^ l.v thnMiirl, ,„■ UM.I.T l,i,„ ,„• (hnn.of tl... nri^inal .-stute (Tf th.^ rnort-a-.,r." Tlu- CTtifieate itsolf. hAu-^ a n-.v .v,vipt an-l contaiMin;^nu.w..r.ls..t'c.mv«.yam'c..|,.nv..sitsoi.cmti..MH.sa rc-coMv..ya..e.. soh-Iy From n-istrati..!, (o. A.,.1, inasimicl, as tl.o statute (l(u's not spocitically stat.> whi,.),. of all tlio I.ors.,ns UK-ntioned, it is in wlios,. favour the reconveyance operates, it hecoines necessary to iin,,iir.. what is the etl'.-.-t ••'■ 'li- n-eonv(.yanco and to seek for a test t.) .j.-t.-rniinc in ulif^se favour it f>perates. The registered disehar-r may l.r dcscrilM.,] as an aut<.- Miat.c reca.veyance vestin- tl... .-slate in the p.^rson who is h-ally entitl...] to it. Just as, upon tl,.; .h-ath of an anc.-btor. tli.' law cast the estat.- upon tl,,' h.-ir-at-law thou;,di he n.iMht he unknoAu and his idmtitv mi-dit liax- to he ascertain.-d hy crtain t.-sts, s., in th.'- casv of th- dischar-e the statute iidallihiy vests th- estat.- in that person of all those nanie.l in th.- \ri who is l..:,ral|y .-ntitled th.'reto. thoui,di certain t.-sts n.av hav.- t,, h,. iippli.-d to asc.-rtain which of them it is in whos.- favour it ..p.-rates. I lie effect of thedischarwv-,h,,w.'v..r,istor.-v..st th.- ..ri-inal estate of the mort^ran-or n nim and n<.t a new .-stati- .l.Tive.! from the mort-a-ee (J). Th.- conv.-yances of the c^piity oi re.lemption may he so complicate.! "that until you 7' V. Jdckufiii, :i Ch. Ajip. at p. .>S2. 222 I'AYMKNT AND DIHCHAIUIKH OK MOKTnAfJKH. I'arlianictit. to Imve |)n>vi«!(»»l for Uu) «liH|)(>MitiHt tlic estate in tla^ pciNo'.i who lias, Hulijcrtj to the iM()rtjj;a;j^t', the ri,i>lit to tlic Ian«l, or the person hest <>ntitle»l to it. And the s/inie principle pervades the deci- sions nnder tlie Kn^Hsh statutes, which |»ro\ ide that an endorsed recei )t on a l)nildinj;" society niort;^a;;e shidl opei'ate to vest the estate in thi* person for the time heini^ enlith'd to the e(|nity of redemption (/). PiM'haps tiie hest niod«' of asc«>rtainin^' who is I he person hest (>ntitled t«> theestati' is torepird theactiuil facts of the several cases in which the ipiestit)n has ariscMi. A niort«jfaj;or paid oil' part of the niort;j;a|je nioneys.and die«l intestate. The widow anrt^a{r«> oxistin^ f»n land, a Htran^cr a«lvanc«vl nionry to pay «»fr tln! Hint niott.^a^*', wliicli was licM l)y a ImlMiii^ HKcicty. TIk! niortj^a^o was pai«l f)fran). It tliUM Mppearn that the asceitaiinii(;nt f)f the jterson in whom th(! estate vests (h;pends to some extent on th(! ri;^dit of redeiii)>tion, liaviii^ le^ard to jtiioritifiS ; an'l upon (Mpiitahie prineiphjjH— matters which are cf)nHidered in the next section, Jt is siiit Iv. ,033. (hi) ]'iits!« r V. I{ir> , 2H iUnv <»8. (h) I'canc V. Jucknov, A <'A\. Aj/p. 576. («) Fourth City, etc. U4/j. Soc'ij v. William*, 14 Ch. I). ilO. Hcf alflO IlithiiiHim V. 'J iiTur, ]2 (^. H h \'1'6 , Lawrence v. ('lemcntii 31 L. T. N. H. 070; llonkin;/ v. Smith, 13 Aj/j/ dt ^)i^>. (p) SanyHter v. Cochrane. 2« (Ai. iJ. /i»8. m^ 224 PAYMENT ANO DISCHARGES OF MORTGAGES. mortgage money, as it does not operate to reconvey the land to the person named, but to the mortgagor or his assigns in deed or in hiw, as set out in the statute, accord- ing as they may be found entitled. It is even said thut the name of the person paying may be omitted alto- gether ((/). But, as the certiKcate until registration is n receipt for the money, it is advisable to truly state the name of the person paying the mortgage money. Where a tenant in tail mortgages in fee simple, a statutory discharge has the effect of reconveying to the mortgagor in fee simple (r). By T/if ReijiMnj Act, 1893, sec. 76, sub-sec. 2, a dis- charge of mortgage, taken by a person who has advanced money to jmy otf the mortgage is to be registered within six months from the date thereof, unless the mortgagor in writing authorizes its retention for a longer period. But such registration is not to att'ect the right of the mortgagee paying oft' :iie mortgage, to be subrogated to the rights <>f the mortgagee whose dei)t has been paid. 3. Assignment in lieu of reconveyance. The morc^agor may, instead of taking a reconveyance or a statutory discharge, reijuire an assignment of the mortgage to be made. This right arises under the followin<( enactment : " Where a mortgagor is entitled to redeem, he shall, by virtue of this Act, have power to recpiire the mortgagee, instead of giving a certificate of payment or reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person, as the mortgagor directs ; and the mortgagee shall, by virtue of this Act be bound m assign and convey accordingly. This section does not apply in the case of a mortgagee being or having been (q) Carriek v. Smith, 35 U. C. R. 34B. (r) Lawlor v. Lawlor, 10 S. C. R. 194. App. R. at p. 703. And (»ee Carter v. Qrasttt. 11 ASSIGNMENT IN LIEU OF RECONVEYANCE. 225 Oraaett. ii in poKsession. This section shall have effect notwithstantl- inj; any stipulation to the contrary " («). By the interpre- tation clause, " mortgagor " includes " any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage, according to his estate, interest, or right, in the mortgaged property ; and * mort- i^agee ' includes any person from time to time deriving title under the original mortgagee." The purpose of this enactment, which was taken from iin English Act, was to enable a person advancing money to pay off a mortgage at the re<|uest of the mortgagor to (l('inan -m, and is a mortgagor within the mean- ing of th»' section, and, if there are several successive mortgagees of the same mortgagor, which of them has a ASSIGNMENT IN LIEU OF RECONVEYANCE. 227 right in priority to the others to call upon the first mort- gagee to assign the mortgage ? It must be tliat one who is next to him. Tlie first incumbrancer has the first right to redeem, and it is impossible to suppose that it was intended that a puisne mortgagee was to have the right to call for a transfer of the first mortgage, before one who is prior to himself." It appears, then, that the right to direct an assignment is involved in the right of redemption. The person entitled to redeem, when he is entitled to redeem, may, instead of a reconveyance demand an assignment. In the case cited from, consequently, it was held that a moi tgagor paying off a first mortgage could not claim an assignment of the mortgage to a nominee of his own, there being a subsequent mortgagee who was next entitled to the legal estate. So, where a mortgage was made under a power, and subsequently, under the same power the equity of redemp- tion was settled on a life tenant with remainders to other persons, and a remainderman bought up the mortgage and obtained a decree of foreclosure, it was held that the life tenant (mortgagor) on redeeming was not entitled to have the mortgage transferred to a nominee of his. He could only get a transfer on the terms on which he could get a reconveyance, that is, upon the trusts of the settlement {li). And where two mortgages were made to one mortgagee on the same land, and the firat mortgage being overdue, an action was brought thereon, it was held that the mortgagor, on payment of the first mortgage, was not entitled to have . it assigned to his nominee, as it would prejudice the mort- gagee's second mortgage {v). This enactment by its terms is not to apply to the case of a mortgagee in possession. The reason for this appears to be that, upon an assignment, the mortgagee would still («) Alderson v. Elgey, 26 Ch. D. 567. (v) Rogers v. Wilton, 12 P. R. 322, 548. m 228 I'AYMKNT AND DISCHAIUJES <>K MOimJAJJES. nMiiaiii liaMo to an account of rtMits ami protits notwilJi* Htannt, an»{e " should have been omitted, L-iviiit; the diechar^'e to be made by the person entitled by law to receive the money. It is idle to say that a dischar^^e executed by tiio person entitled to discharge the mortgage shall operate as a discharge. (y) 5 App. R. at p. 77. srUVIVINO Mn|lT(iA«j(', who hiid Immmi ^ivrii otht'i- HCMiiity iiiMtcud ol' |>ayint;iit in iiioiicy, thf IjiikI whh .still Huhjcct to tho iiioil;^f)i;,^<'. Iliit when? such Ji (lis(diur}^(! hiul Iktii rrjfiHtcrcd, niid uiiotlwr juircliaHcr |)(»ii;jlit Hiioth(ir |)Hr(M'l IVi.iu tin- iiiort.;4a;4(tr without iioti<;ling a surviving mortgagee or executor to discharge would be {z) U. S. O. cap. 102. (a) Ex parte Johimm, P. K. 225. %;^ 2^0 I'AYMKNT AM) DISCHAItJiKS OK MOItTflAnKS. uimocossary ; and, on the other hand, if the only authority which a Kurvivin<; niorti;aLree or executor has to dischar"!' a inoi"t^ai;«! is the enactment rehitin<; to .survivors, then it seeins manifest tliat the K'nishiture did not intend one nf sevei'ai Iivin after assi^innent to dischai\i;e ; iiut this plainly could nut be the intention. A more prohahli; interpretation Is, tli.it the morti,oi^ee, or his assign, oi" his executors oi- adminis- trators, or any one of them, as the case may he, heini^- at the time the liohU'i' of the moi't^^a^c;, executinj^^ tlw dischai'^^v, shall thereby validl}' dischar^-e the moi't^ane, whether tin- discharge is execut«M! befoi'o or aftei* the time limited fnr payment. The! history of this section, which appt>ars in tile prior enactments {')), shows that the object of tlif section was to enal)le a discharge to be made, and to declarer its ctfisct, thouu'h it mi^ht have been executed aftic the estate had become absolute in the mortater wei<;'ht of judicial opinion it svould be unsafe to conclude that any oiie of several mort<;a:(ees, or of several assions in deed or in law, could ett'ectually di.schai-j^e a mort^•a^•e under the autlu^'ity of tills clause. (/>) 9 Vict, cap, :U, sees. -J:}. 21; 10 iV 11 Vict. cap. 1(1, sees, 1, 'J; C. S. U, C. cap. 8',>, sec. ')<). (c) 31 Vict. cap. 20, sec. (12. i)is(HAU(;i:s I'.v mauiukd wo.mkn. I'M Where a in()rt;xa;^()i' was a])])()iiitc(l one of the nioi-t- ^faH'ce's cxecutorH, aiul executed a tliscliar^n' of his own lnctrt^•a^•l', it was douhted in one case whetliei* it was valid ('/). And in a latei' casr, where oik; executor made a iiK)rt;^ano to his co-executor to secure repayment of funds horrowe n|' .M( iKHiAiiKS. lU't'fssnry ji.u'ty t«> tlir c rt ilicatc i'/». IpMii t]\<- rt-visioH of t ln' s|;it iit'S ill I s77 it \\ ;i s riiact'' 1 ( A ), t li;it ;i cri't iticati- (•\»'(Mlti'< ^1 Wnim „ s i>, .n h'.-^hlh All. /V,'-.'l, it was SUtliciclit if » \rClHri| idilllK- tic liiisliainl aiiij wife; ;iiii| fioin aihl ifl'T 'Jlttli Mad IS7;{, if rxcciitccl riilicr jiiiiitlv l.\ till' liii>!.aiiil aii'l wif '•■ I'V IMiisiiaii I t.. 77"' My iiiisliainl aii'l wil'c; aiil no ci-rt iiicat,*' >'\ rxaiiiiiia t imi was iiccrssary. ill I ^^ I ilii' l!r\ist'il Statiiti' was aiin'iiilnl liy ^t^il ii'4 oil! till' ivc|iiir.iiiriit as to till" iiiiiilc '»f rxcciit ii 'I' iii fiiliiii', ninl it was (jrclai'i'ij that itsh.ailij not In- necessary fnftli-' hiisliaiiil to join. It was fiirt lur cnacteil that any < li,>eliarL;r theri'tofoiT fxciaited ' \' a niairieil wdinaii aliaie. mil duly re;^-iste|-eil, . should lie ellectual to d isclia I'^e the niorti;aL;e Ulid |-econ\ey tliei tateas if it, had Item executed hy liie husband and wife coiiiointly. This enaelnienl should also ha\e irjiealed thai clause of the IJexisid Stalnt' which declared piex ioiis dischafn'cs \alid if e .eculed jointly, and that future dischait^is should he \ alid if siniilaily exeiaited I lilt not ha\ Iul;' done so, tlh're WiTe thus Ivf I in t he stat ute- two eutii'ly contradictory enactments, one declaring that nil |)re\ ious and future discharL:es should liednmed valid if executed l>y the niairied womai' alone, and the other as am.Mi.ir.i (_/, |,y r.ikiii;^ away tli.- iM'.Tssity I'T a ImJ.aml I •> jniini, any .|rr,i .,!|,i.s wilVs I'm,- '"■ |'"ir|M)s, (.r ii.akiiiM' ii.T c.hxry.iiirr \ali.|. TIm' cii.) '""''' '•"'•<'' iIhii Ml' ||„. riiacliii.'i.t.s iv^iMftii,.^ ,|i^,.|iar-vs iiml Tl,> M, I, ■,•>>, I \V,,ni> ,,.s l;,,il l-:M\r ■'M'l''lliM-nt, is \alhl il" , v., .cut. '.I .•iti.rr jointlv Willi li.'l Im-^l'aii.l ..!• pursuant to Tin M.irm,! [V,,n .1,, s "/.',,// A'.s/,,/, .1'/, U-hicli allows it Id Im. .|,,uf l.y \u'V alwuc llrfoiv this .iiiirn.hiicut tliriv is til., inc.nsist.'n.-y al».\r )M,iut..| ,,ut ^^ '''*'•' >""^' ''<• l"'l'l t" III'' CMiilrnii.iati.Mi ..r il,.. r..a.|,r '"p'y •■^'^ 't' ill., cui i..sili..s aii.l in..\i. Ileal. !.. ni\ ■•{<-v\< -, ' 1 .'Ur lt"_;islat i.)u. t./l 17 \i.t. call r.t, sec. 21.'. .)•> I'l K( II Asi;i! s i:n;iii m iti;i.i)s. rii,\i''n:i; i\ I'l i{( II \si:i; s i!ii;ii r m iii:!;i)> I. rr>Jn,l mil . / \i mi I r I I 'III I I II I II 1 1 lr\c|-\- n|' uni-c^istcicd interest III' s ( . ). Tile j)rt)iluct inn nl' the deeds lias, tlierej'nre, liccnniea matli r nl' little inipni-taiK'e. I'.ut a |iurcliaser is, nut u it listandin, this, entitled to ha\'e |ii-ndiicti()ii nl' all the deeds if H' ' rcstl'icteil hy the cniltl'act. And Upnil Cnm|)|etinn nl' til' contract he is entitled to lia\e deli\ ered tn him ( /// ) all t k- deeds and e\ idenee y^'i title, e\('e])t dncumeiits w hJch li lias (/,) Aiiia lUinh v. Puirni. L. K. 7 II. L. l.'5'i ; W'alcr^ v. ,S7((((/.', •_' Cr. ■.'. (/) ViT Lord Selbonic. A,ini li.uih v. lUin-ij, L. H. 7 II. L. at \>. I", (m) Su^'. i;!;{. I'l;<)|»r( I |((V. 2:{-i l.tcn [>r'M|||c.(| MS ||.;f(||i\i' l\ i<|.tM'l' (<> wlti'l'v llilll |||;|J, f hey n.iiljiiii ii'if liiii'4 ;i||'.c| iir_. ihi' tiili' ( /« | ;irp| lir (•.•mnot, 111- (M.iiiiM lltil tu cniniih (!■ hi , CMiit r.ict iiiili , tlif i|ic(|s iiii- [■I ' I'llK'i c I I ir 1 1. |i. r |( i( I 111,1 |i|,|('i \\Im|i||I' |ii,i\ Ii;i\ !• access I" tliciii (..) r.iil if til- \ciM|(.r rct.iiii, I, Hid wliicli i, |,c|.| iiiir mu t .it lilM own c\|iclisc ri|Mil-li alti |( i| ci.|,i, ti) tt:e Iilii'- cliasi'T (/(), aii'i chtiT iiit'i a C(i\i|iaiil tw |.im.|ucc at IJic pmi'li.-iMT s c\|Hiisi' all ilccils c\c.[)t |||M,c w liici, aic i ,\' • ''•'•l"l, lint t lie |)lircli;i ,'■!• i'. lidt rlililleij |i, |ia\ e c,,|,ies 111 any insh lum nt > wliidi lia\f lnin |iii)i|iici i| iiiiie|\- to iic;^;itivf a, Jtussiliility, ami wliiili lie cmiM nut, liaM-CMin |i'll''y Th' \'< nilnr ,1 inl I ' n i-< Im !' re^isteicj all'! ntlier ■loPtUlH-ntS Jil-i,ei||ei| at the evpellse i,|' tile \e||i|,,r \, y | he [iiirjiii.-,f ,,!' \ eril'yiiie- tlir ahstraet. jlut, thi^ i|eei.-ii,n i-. C'lnlniiy to aiithoi'ity ( ";. I'nless tiny ciAer uthei' lanij ht) Sii:_' •;''.(). (>i) .S7i()/-t' V. ('nil, It, (!ui.|). •.';; t ; /»,/;■, v. 'Jii,-i.,r. r, \ . s. ii;(i. (l>) h'lrr V. / ifl.rr. r, \'vH. ICH ; linii^iliton V . .7, ,(.//. !.'> \(S. 1 TC JU' Churl,.. I (ll. CI,. I'.i. {'D Dar , \ . .v 1'. litli »;(!., ;57<'i, 7'1». (rj Conpi-r v. i\iii,r;/, 1 Ph. ."iHS. {•-) li. S, (). (;ii|i. ll'j, sec 1, suli-^ir. 1. (M H 1'. l;. 2'X\. [Uj See Su<^. lis ; Dart. \ . .v 1'. ."jtii ici.. '-77 ; /.'• Churl..-, i (1.. Cli. I'J. '•^mm 9S f» 2.iG rUllCHASEIlS UlfJHT TO DEKOS. I'otained by tlie vendor it i.s difficult to see why they shouhl not be delivered to the purchaser with the other evidence of title. 2. Recovery after contract. If a purchaser omits to secure all tlie muniments of title at the time of completinjj the contract, he cannot nl^terwards recover from the vendor documents which may ba required to establish some collateral matter; nor can he compel him to enter into a covenant to produce them, even though the j)urchase deed contains a covenant for further assurance (r). But if any dormmcnts which directly relate to the laml and are in fact title deeds have been retained by the vendor, the purchaser may recover them, for the title deeds are thin<:fs which jjfo with the inheritance, descend witli it, and pass with it by conveyance without b;iug named ((r). And especially is thl.i so if there has been any misreprc sentation made b^'^ the vendor. So, whore an abstract of title represented that a will had been proved, and it appeared subsocjuently that this was not the fact, hnt that the will was with the vendor, it was held that the purchaser was entitled to have it deposited with the Master in order that he mi^ht have access thereto at all times (a:). 3. Custody, and covenant for production. As a general rule every owner of property for the time bein<5 is entitled to the possession or custody of the title deeds relatin!^ to the property, whether his estate be in fee (?') Ilallett V. Middleton, 1 Ru8b.243. In Fnin v. Ayers, the report in 2 H. it St. FtHH uppenra to contradict this, but in the note to Hallett v. Middleton, it in said that the case waa determined on the purchaser's equity i^ the deeds, not on his ri^ht under the covenant for further ubsurance. (w) Sug. 438. (x) Harrinon v. Coppard, 2 Cox 318, explained in Ilallett v. Middleton, I Buss, ut p. 25B. . . CUSTODY, AND COVENANT FOR PRODUCTION. 287 simple or fee tail, or a life estate, or an estate in mort- <;age (>/). But where several persons take interests under the same deeds and have e(|unl interests in obtainin^• possession thereof and using them, the title to the deeds is amhulatory, and he who iirst obtains them may retain them (:). When the land is sold in diflcrent lots to various pur- chasers, he who buys the lot of the greatest value is entitled to the deeds upon entering into a covenant with the other purchasers for their production (a). And the vendor must, in the absence of express stipulation, furnish the other purchasers with attested copies of the deeds at his own expense, however inconvenient or expensive it may be for him [h). But it was suggested in JJiire v. Tucker that the oriffinals mifjlit be left in the Master's Office for the conniion use, or that some other proposal might be made by the vendor. When the vendor sells land with respect to which he has retained deeds and has covenanteil with a former purchaser to produce them, he cannot retain them but may require the covenant to be endorsed upon or recited in the conveyan(!e, and might fairly recjuire a co enant from the purchaser to perform it (c). Cosenants for production are real covenants and run with the land for the benefit of purchasers, but not for the benefit of V(;ndors ((/) ; in other words, purchasers from the covenantee may take advantage of them against the covenantor himself, but the lial)ility will not extend to the covenantor's assignees (c). The covenant to produce is (j/) Gov. Con. Ev. 135. (z) Foster v. Cmhh, 12 C. B. 136. (a) Griffith v. Ilatchard, 1 K. A J. 17 ; ScH Rep. R. P. Com. 57. (b) Dare v. Tucker, G Ves. 400 ; liouijhton v. Jewell, 15 Vea. 17G. (c) Su(^. 431. (d) Barclay v. Ruine, 1 S. & St. 449. (e) Piatt Cov. 227. ■"^■■p 238 PURCHASERS RIGHT TO DEEDS. therefore commonly said to be lost by the holder alienatin^r tlie lands in respect of which he whh allowed tln^ custody of the deeds (/). This, however, is scarcely accurate. It is true that he may with the estate deliver over the deeds to a purchaser, but this does not exonerate him or his heirs from his covenant to produce the deeds. If he has ne<(lected to take any lej^al obligation from the second purchaser to produce the deeds when he]shall be called upon to do so, and cannot prevail upon him to i)roduce tluMii on any jrivcn occasion, then \w, or his heirs, if bound, are liable to an action on the covenant to i)roduce, and dama<;i!s to the amount of the injury proved will be given iijrjiinst him (f/). It has been said that a covenant to produce all deeds, ])apers and writings j^enerally, without a schedule, is a mere nullity {h) ; but if it can be shown that the covenantor is in possoswion of a documc^nt or set of documents relatin<^ to the lands, he wouKl doubtless be held bound by his covenant (/). The effect of T/ie CnMoi/y of Title Deeds Act u\)on a covenant to produce has already been dealt with {j). if) Gov. Con. Ev. 129. (f/) Cov. Con. K\. 127. 130. (h) Shaw V. .SVfiir, V2 Pr. 103. (i) Cov. Con. Ev. 132. U) Ante, p. 95. OllIOIN OF THE DOCTRINE 239 CHAPTEU X. DOUHTFrL TITLES. 1. Origin of the (hu'trine. 2. Ait^ovi\t of dint bt iicci'sstir;/. 3. CluHsiJicatlon of doubffal titles. Lord Chief Baron ICyre, ref(;rring to the doctrine of douhifiil titlfM, is reported to have said, " that thougii a conveyancer might have such (h)ubt8 upon a title as to advise a purchaser not to accept it, yet that there could not he such a thini^ as a doubtful title nx a Court of Justice — it nnist be either rij^^ht or wrong, and the thickness of the iiiediuni through which the point was to be seen made no (liti'erence in the end. The Court might have some difficulty in clearing it, but, have been the first Chancellor who entertained jurisdiction where the plaintiff had not previously recovered damage; at law (o). In conseciuence of the change of practice, it (m) Fry Sp. Perf. sec. 60. (n) Halsey v. Grant, 13 Ves. 176. (o) Dodsley v. Kinnersley, Amb. 406. ORIGIN OF THE DOl TUINE. 241 ? estate 1 of tht^ Detwoou tending- into th(! possible idity as a period re to V)e 5d. Tlie ) the title without b upon it ease, the irketable Court of |suit only but this i). It is Origin (»t' lo doubt lation of effect of 1 the title, ich cases [s said to [isdictioii [damage ! lactice, it became necessary, as we haVe seen, for thu Court to look at the v'>ndor'3 title before compolling the purchaser to accept it. Shortly after Lord Somors' practice was established we find the first reported case, decided in 1728 by Sir Joseph Jekyll, M.R., where, " there being th<; opinion of learned men against the title," the Court did not think it reasonable to compel the purchaser to complete the purchase ( p). Lord Thurlow followed in 1780 ((/), and was said to have acted upon precedents of Lord Northington's (r), and the doctrine was repeatedly acted upon by Lord Hardwicke (s)- Since that time many Judges have affirmed the principle, and it has received the sanction of the House of Lords (f)- The practice of the Court of Chancery, however, was not uniform. For the Court was nr always wont to let the purchaser off upon a doubtful title, but was at one time accustomed to pronounce decisively upon it, and let the purchaser appeal if he would (u). And as late as 1S13 Lord Eldon adopted this course and compelled a purchaser to take his opinion on the title unless he woidd reverse it (v), thouirh the doctrine of doubtful titles was at that time at least ninety years old and firmly established. And recently there was a return to this practice, as far as general questions of law are concerned, the Courts holding that as between vendor and purchaser they were {p) Marlow v. Smith, 2 P. Wms. 201. (7) Shapland v. Snith, 1 Bro. C. C. 76. (/•) Gale V. Gale, 2 Cox !46. In Eden's note to Cooper v. Dcnne, 4 Bro. C. C. 88, it is Raid that no such decisions could be found amongst Lord Northington'H MSS. (a) Sloper v. Fuh, 2 V. & B. 149. (f) Blotte V. CUtnmorrii, 3 Bli. 02 ; and see Parker v. Tootnl, 11 II. L. C. 158. (u) liigiie V. Perkins, I V. & B. 493 ; Jervoise v. Duke of Northumher- Uind, 1 J. & W. 5(19 ; Vunconver v. liliss, 11 Ves. 4t)4 ; Stapylton v. Scott, 1() Ves. 273 ; Fry Sp. Perf. sec. H79. (v) Biscoe V. Perkins, 1 V. & B. 493. And see Eden's note to Cooper y. Benne, 4 Bro. O. C. 88. TITUtS — 16 242 DOUBTFUL TIT RS. bound to decide questions of law as iHtvveen other litigatiii), the Court might have refused to act upon it (<•), for it appears that it did not bind either the Chancellor (d) or tho parties (c). Indeed, it seems that the Court of Chancery was bound, notwithstanding the certificate, to form up. («?) Alexander v. Mi'ds, Ch. App. l.'M ; Oxiwrtie v. Ilowlett, 13 Cli. D. 781; Fomter v. Abraham, 17 Eq. 'Ab\\ Hull \. Hiitchens, 32 Beav. Ol!); U'rigUy v. Sykes, 21 Beav. H48. (x) Re Thackwray (£• Yointji's Contract, 40 Ch. D. at pp. 38, 3J). (/// Cooper V. Denne, 4 Bro. C. C. 87. But qucere whether tho exprcs sion " no jurmcliction to bind the question " duos not mean to bind abHiiit partiep. Iz) Jonen v. Parinhes of Montffomnry, 3 Hwans. 22(5 ; Pelham v. Gregory, 1 Eden 591. But see White v. Ligle, 8 Hwans. 344. (a) lioake v. Kidd, 5 Ves. (547 ; I'yrke v. Uaddhujhani, 10 Ila. 11. (b) Wilkin»on v. Chapman, 3 Hues. 145, 148. (c) Sheffield v. Lord Mulgrave, 2 Ves. Jr. 526, 529. (rf) Prebble v. Boyhur»t, 1 Swans. 320. (<) Sharp V. Adcock, 4 Russ. 375. OUIfSIN OF THE DOCTRINE. 243 bigating ently to arising; ,ppe)in;(l ubt the len some yhan^'ory \n), the appears ) or the 'hancery form ail t, r.\ CM. 1). Deav. till) ; the cxpres- I bind absent n V. Gregory, lift. U. opinion of its own and act accord in<,dy (/). Hut where tlie opinion of the Court was fortified by the opinion of a Court of Law, specific perfornuince was decreed (tj). The power to send a case to hiw was suhsecjuently taken away fi'oin tlie Court of Chancery, and there was jriven to it as a sort of cf)n»pensation power to recjuest the attend- ance of a Common Law Jud<;e (A). Whatever part, if an}', this want of power may have phiyed in tlie orit^ination of the doctrine of doubtful titles, there was ample power in the Court at a later period to de('ie seen that the doctrine is purely an eijuitable one ( j). A decree for specific performance cannot he claimed as of ri<;ht, but is in the discretion oF the Court (A) (the discretion lieiiij^, however, a judicial, and not a capricious one), and the Court is ujion this theory under IK) oblipiti(m to decide conclusively ujion the title for the henefit of the purchaser. It will be seen, however, that tin; rule of the Court has varied ; and that where questions of law are raised the present practice is for the Court to dispose of them, unless there are ilu'td which would reiidei' the decision itself doubtful. (/) Liiiisdou'iie V. I.dimhncne, 2 Bli. HCi ; ]Vtikh(nu v. n'v'>'"""> 1^ Vos. 305, wlioro the Ivini^'s Fieiuili and Common Pleas each certified adilftTi-nt opinion, and Lord Eidon differing from both decreed according to hirt own view See also Duke tif Xnrtolk'ncane, H C'h (^a. 1. (//) liushton V. Craven, V2 Pr. ')H'.); Clhirlton v. Cnueit, I'i Pr. (ilU ; Clunmert v. IVhitaker, '2 .lurin. WillH. oth Ed. P2<.M), cited 10 Ha. 10. (/() See dictum of Kindersley, V.C, in Hujihet v. V. <( //. II. Co., 8 W. 11. ,»a7. upon 14 & lij \ iet. cap. SU, sec. 8. (i) ShrewH'inry R. do. v. Stoiir I'allcif li. Co,, 2 D. M. A O. H80. (,/) Tliere are cases at hiw in winch the existence of a reaHonsihlc doubt upon the title has been held a sutticient definiie to an action by the vcmlor for breach of the contract to purchase : HartUtj v. I'f'uiH, Peake, N. P. C. 178; and a «ood cause of action by the purchaser to recover his (l<'pi)8it : Wilde v. Fort, 4 Taunt. 'AH ; Elliott v. Edutmh, ,\ \\. A- P. 181 ; Ciirlinn v. Shuttlewo'ih, ♦> Biiij/. 121 Hut see contra, Romilij v. Jamen, 6 i'aunt. '2(W; hni/nrin v. Gutch, 7 Hin^. 3711, Ji'JO. {k) Fry, 8p. Perf. sees. 14 et $eq. 244 iMU'itTii'L Ti ri,i:s. Ill (Icfiliiiji,^ with <|\irsti(>iiH ol" fact, liowi^vci', oiscs iim.st fre<|U<'ntly oeciii- in wliidi it. is wot jiossililc for tlic ( 'onrt t()iirriv(» at any tlccisioii . I'oi- cxaniplc, wlicrc a sntliciciii kiu>\vl(']miinii (>r (ttlirr ('()iii|(rtcnt jirrsiiiis iiiiu'lit lif. ami iim liciii"- aMc to satisl's' hiinscir that sticli imtshhs iiii"lit ii()t (lilltT iViiIll llilll, rrt'llScil to I'olCr the title otl tlir | ilircllUSCl'. Siil)si'i|iiriitly. the saiiic title cann' lirt'orr j/iril lli'inilly. M.ll., in .l/"//'//'/N \', I'l'i (iilr r (()). aiiij liis Loi'le;ht, to |)revetit tlie ('ourt I'lnin eiirorciiiL;' spccilic jierroniiaiK'e in the way I \|)i'esses it. It' the rule is that, the .luil^e ()U;;ht to clirorce the title whene\ei- he I'eallyand sincerely lielie\es that a man ol" sense will not cliller I'roni him (-n the cons! I'lict ion hi' has come to in that ])articular case, then, appl;, iiii;- that rule to case. I do not t hiid\ a n \' sensilde man would di tier from ins his IS a iiie Ml the conclusion I come to m this case. Very strikiije" instanc<' of the uncert.iinty that ]pie\ails, as the title was the same in each case. A^ain, it has iicen Lfiveii as u reason for not forcin:^' Ji doulttful title on a j)Urc'hasei' that it would leaxc it on his hands unmarketahle : thoU'di it is ex ideiit that a decision in fa\our of the title would I'eiidei- it marUetal'le. And inasnnich as a tloulit ful title is simply one that is not maiketahle, the in(|uii\' \\ hetlier or not it would he marketahle in the jiurchaseis hanils is simi)lv an iiniuirv whether or not it is a douhtful w title (/>). But these (piestiniis mav' not he deemed ..f much iin|(ortancc if th<' rule is adhereil to, that (|Uestioiis of la uuist he determined one way or the other. And with rcH[)i'('t to i|Uestioiis of fact, the aiiilit}- of the ("oui'ts to determine the matters in issue mieht he much enhanced if the pnu'tiee of comjiellin^- the \cndor to (piiet t he t itie were Htrii'th {idher.'ii|i rat ii >[i nf ili< sul'ji'ct, till' fnlldw ill;;' iiioic |i irt iciiliir claNsilicatitMi may li< i'oiiiiil iiM'I'iil ( I') : - I Wli'Mi' llii'ic i-^ a |irnlialiilily m|' lit i'jal i"ii. "i. WIkti' flii'i'' is a ilillrri'iicf kI" jiiilirial npiiiiciii. I i I iJi't w fill ( 'niiits uf co-diiliiiatf jurisilict i"ii (a I WImtc a past a'hi'rsc iltcisioii i> iluul 'hd. il.» Wlit'if a |ia--f fas iiiiialili' ilicisioii iv(|(iulitr(|. ( ii ) lift w I •I'M appi'llalf aii' I iiil'TiMf ( "(iiirls. '{. IIras< ilialilf (jdlllit 'litli'lilicc m|' |c-;|| (ipitlinll. •!■ WImtc till' coii-.t I net ii III 111' an iii'-t iiiiiniit is in ijUrst iiui. (i) Whi'i'i' tlicrr is a fi-iirral |iriiici|>li' iiiMiKiiJ. I ii I W'lii'i'i' till' iiili'i'|in't,it imi i if t 'r part iciilar instill llli'llt Hilly is ill\ (iK i'( I. .1. W'JMi'i' a L;riii'ral pfiiiriplr 111" law is iii\ 1 1|\ i'. I. ti Wliiir till Ti' is iiiicii-t ;iiiity <>r Tact. (i) I )i'l'i'('t i\ •■ priiiif lir;;ati\(' | in ipi isi t ii ill. ( ii I I'l'i'siiiiipt imis. 7. (^Mlrstio'is of CI )|i\ i'\ aiicc, I, /'rcliiilii/ il 1/ 11/ / il K/iil inn. It lias licm said tliat llu- ('iiiii't will iiiit ciiiiipi'l a piircliascr ti 1 liiiy a lawsuit, tli.it is, MM estate will imt lie I'urcril upHii liiiii wliicli lie can only acijuire in possrssidn liy lit i^at imi, aiiil Ji.iliei;il ('/I S".' iKiti) 111 ('liiipi.r W'il I. iif |);irt. V. A 1'. (/■) Sec till' clas.silicaliiiii m I l.nriiilh v. Suiilli. (', Sim. I'l'i it sni. i.A>siiir \ rin\ (»r Ddiiii iTi. 'irn.!-: •jn a ri;iv. ,ri;i I ■(•••tit Wccisioii (,s). r.iit llnii' iiiiist |„- [>i il.;il.ility -.1" liti;:)iti..ii,' ll,.it j. tl„. piiivl. , ..r 1,,,,^ I, U'in\ nilr w hrii ti tlicr't' is Hut. a [ii'oiialiilif y y if ,|..|,.i„|s, as \\.. liav.. sr.ii, mtirrh lllioli \ alilr 111' I ll III ■'•tiMii raised t< di-' fit ( oMi't lias t. ( <|rt,TiiiIi|,v ill I III' al ms. lu'c (ll a f hir u hiiiii a claiiii is, ny ma \ dc, aJ' [Ki ty w li.i ■IV is fiiv ju-^i tiiiiiiilal lull |i If I i< claiiii H' Mil,. Iiaiiil I ht 'III as Id laKf ••ar-' lliai tli.' jn li-ht, n\' ih party Mskllij- I,,r lis IllI.ThTrlKV a |V : ,• ,t .IrlVatc'l liy |||,. . , ss, • |1 i. ,|l "fail iiiif..iii|.|,.,| .laiiii. (.11 ih. ..tlicr liaii.l, it lias t. . take '•'|H'il '•■ll''- "li-if ill.' party auaitist uIk.im it> ihicrt'.'ivp is -^Miiw-jit is iiMt "\|i(.M.,| r.. llic .lander aihl r\p,|isi ,|' ,.,.|i d'^liii','' 11 claiiM wliicli may Im- i'( iuikJcJ (,|, siili.iaiit iai -'■""'i''" 111'' 'pL'siioii ill -aicli cases is. what is tli.' \alnc "1' tin- "l'i''''li"n ("1. Where tlie (",,iirt (•(.iiM .|. teimiiie t'"' 'I"'-':"" '^ '" 'll'- '''!■ I party, it appears t'. Iia\e I.eeii '!"'"■ ''I -"ine ras ,, Thus, uheiv ,1 \-eii.|(.r claiiiie I iiiMJer .1 will ,hii-]i was (lispiitel l.y the heir-af law who had already lieeii dereat"d in an aclioii ">t" ■ ■ .,•! meiu In, ni.dit, liy him. the ( ■(.lirt d'reeted the elld'il to file a hill a-aiiist the heir-at law to ,.si.d,lish tin- w II rather than lea\e that t" th( purchase > t.. ih. ( /•). ll' 'III' 'irst . liiioii .if fhi- \\(uk it was sue-^-,.steil that, as tlii'fe wa^ pi iwi-r t( 1 the rules III' Jiract ice. ill hird ji.irties tn an action under cases \\ Im |-e it a' 'l"'are.| that a lUcstloll III the ac l"n sllollld lie ileternniied. let ..iil\- 'tween the jilaintiir and defendant, hut hetween t aintitr. il''ii'ni[ant aii'l anv- il ller p''rsiin. tlii'i'c was in rrasiin wdiy ad\ anta^e should not he taken of this pract ii ■) /'/•/(•.• \. S'n ;;!.;.■, ti Miul, 111.". ; /,' V. ('til, I nil. :< \fs. ir,.s. (M f';/rl;,\. n\t,hln„il,.ti„ . 1(1 |[;i. 10; Ciudl v, Cnrnill. 1 V..v.(' (k) lihtss V. /,'/,•/((/ r./. complete his contract and accept the title (f linutation does not i>xpi!-e until after the date of >'u' contract (/•). lUit if tlu' purchaser, on discovery of this fact, rej)udiated at once, probably the vendor could net enforce the contract (n). 1. Xitfitn' of Evidence. As between vendor and purchaser the facts are t^enei-ally proved in the first instance by statutory declarations, ainl vvluM'e tlure is no suspicion raised as to the vali. !n 7»V li<>l(fiU'^(^l <('• Wanrir'. {r),\\hv\v tbe point was raised, Proudfoot, J., «»n an application under this Act, directed the vendor io furnish the purchaser with ((/) See also Tnthill v. Jxoqem, 1 Jo. iV L. 72 ; lie lioiistead iC' Warwick, 12 Out, U. 488; Ihwie v. SLiUr, 21 Oi.t. li. o7"). (r) Gaines v, Honner, 3H W, R. 04. (») Haggart v, Scott, 1 K, A Myl. 2'.)3 ; Forrer v. iia»h, J5 l?env. 107 Brewer v. Jiroadwood. 22 Ch. D, lOo; PaUley v. M'ills, 18 App, li. 'ilO. (t) Scott V, Mxon, 3 Dr. A War. 402. (u) R. a. O. cap. 112, 83C. 3, (v) 12 Ont. R. 488. NATUKK OV KMDDXCK. 21)1 1(1 (t Warwick. urtidavit ovidenco, so as to t'nablo hiin to rriKss-cxamino tho ilopononts, l»ut il' ho hIiouUI still be (lisHatistit'ti, he ^ave leave to the vendor to briu^" an aetioii of specitic })ertV)nnaiice, in order tiiat the eviilenee nuLjht be taken rim rove (»•). In one case the eonduct ot* the pnrchaser was tliont;iit to be unreasonable in exacting* the iiji^her class ol' evidence, and he was ordered to pay the costs of the intpiiry, thon«4h the title was first proved in tlie Master's otlice {x). lint this case exhibits special circninstances. li can hanlly be said that a pnrchaser is unreasonable in denwt.ulin^- stiiet {>rot)f of the extinction of tlie paper title; and in Scott v. .\ i.ron{i/) Lord St. Leonanls said that the purchaser is not bound to accept atU(hivits, but may insist upon having' a regular exauiination of witu'.sses in the Masters t)Hice in the usual way. "The mode of pn)of," his Lordship said " therefore in this case rests entirely on the purchaser's consent " (;). It does not ap])ear necessary, however that an action should be brou>4ht, for the Court has jmwer, upon an application under the . endor ami Pnrchaser Act, to refer it to the Master, and upon such a reference the evidence may be «;i\en rira ('urc. Proof that the ventlor and those under whom he claims have been in undisturbed and peaceable po.ssession for ten years will manifestly avail n'm nothinj^ unless he shows the state of the title at the time ])ossession was ac(|uired {((). For tiiougli present interests may l)e extin<^uished, ther^* may bo future interests which are not barred. And it is also necessary to show that at the tune when the jH)ssession {w) Without loavosucli an notion could not ho brouyht iiftor an nppli cation un.lcr tho VtMidor ixiul l'urch..si>r .\ct : /I'c Cni/f/, 3 C L. T. TiOl, followintJ TlioiiipsuH V. /.'i;/;;,r, 41 L. T N. S. i'>01. (x) Dami' V. Shitfr, '21 Out. U. 37"). iy) 3 Dr. it War. at p. lO.!. (z) See iilrto linidii v. Walh, 17 Or. tilH), But aa to this caso, see Ihime V. Slater, 21 Out. H. at p. :177. ((I) Darhy & Bos. 320. 262 TITLE BY POSSESSION. commenced, the rightful owner was not under disability, or else that the possession has been continued for the required time after the disability, if any, ceased (6). There is no exception, in favour of a pei*son holding by possession, to the rule that the vendor must furnish an abstract unless otherwise agreed (c); and as an abstract miy easily be made up from the entries in the registry office, it would not be unfair to compel the delivery of a complete abstract of the paper title, continued by an abstract of the title claimed by the vendor in extinction of the paper title. It is true that upon being furnished with evidence of possession, the purchaser could, by searching the registered title, satisfy himself as to the state of i/he paper title at the time the vendor took possession ; but it is conceived that he is not bound to do so. The evidence of possession is insufficient to establish a title if in fact there has been any acknowledgment of the paper title within the statutory period ; and so the vendor must in addition to the positive evidence of possession, adduce negative evidence that there has been no such acknowledgment — a matter with respect to which it is manifestly difficult to give satisfactory evidence {d). But even if satisfactory evidence of no acknowledgment be given, there is still danger that a writ may have been issued by the owner and kept renewed, a fact sufficient to prevent the running of the Statute (e), and one which it would be almost impossible to ascertain except by personal application to the owner. (6) Game* v. Bonner, 33 W. R. 64. (c) lie Boustead d- Warwick, 12 Ont. 11. at p. 490. In Scott v. Nixon, 3 Dr. & War. 388, an abstract was delivered. (d) Per Malins, V.C, Re Alison, 11 Ch. D. 290. (c) TurUy v. Willianuon, 15 C. P. 638 ; see also Atisman v. Minthorne, 3 U. C. R. 423 ; Doe d. Perry v. Henderson, 3 U, C. R. 486. OPERATION Oy STATUTE — EXTINCTION OF TITLE. 263 ott V. Nixon, '. Minthorne, 2. Operation of Statute — Extinction of Title. By the prcnent Statute of Limitations (/), no person shall make any entry or distress, or bring any action or suit, to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress or to bring such action or suit first accrued to that person or some pei'son through whom he claims. By the fifteenth section it is enacted that, "at the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress, or action respectively might have been made or brought within such period shall be extinguished." " There is a marked distinction," said Lord St. Leonards, "between the old statutes of limitation and the present one. The former statutes only barred the remedy, but did not touch the right ; possession at all times gave a certain right ; but under the new Act, when the remedy is barred the right and title of the real owner are extinguished " (i). There is therefore no transfer oi- conveyance of the right or title of the dispossessed owner to the usurper, but the statute, upon extinction of the paper title, is exhausted in its operation, the effect being to leave the occupant in possession with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him. Where the dispossessed owner was tenant in fee simple, the title being extinguished, there remains no one to claim any interest in the land save the person in possession, who thus must necessarily be invested with tlie fee. But where land is in settlement, then, (j) See Doe d. Jukes v. Sumner, 14 M. & W. 42 ; Heath v. Pvgli, Q. B. D. 3G5 ; Incorporated Soc'y v. liichards, 1 Dr. & War. 289 ; Scott v. Nixon, 3 Dr. & War. 407 ; Court v. Walsh, 1 Ont. li. 170. (fc) 1 Hayea Conv. 168. (I) 3 S. C. R. 454. (m) See also Dart V. & P. 6th ed. 464 ; 11 Jur. N. S. 152. COMMENCEMENT OF RUNNING OF STATUTE. 265 on the hypotliesis that the title of the disseiHee is trans- ferred to the (lisHeisor, the hitter would from time to time be invested with the estates of the successive takers under the settlement as the title of each is extin«ruished. This is clearly not the operation of the statute (n). It will also nj)pear, in dealing with the case of successive independent trespassers, that though the owner may have been con- tinuously absent for more than the statutory period, the title does not pass to any one of the usurpers (o). It may be well to remark that the statute is operative only while some one is in possession against whom the owner could issue a writ; for the person having tb3 paper t'tle is, by virtue of his title, constructively in possession, though not actually on the land, if the land is vacant; and, as the statute merely prohibits hinj from bringing an action to recover the land after the expiration of the period men- tioned, it implies that there must liave been some one in actual possession meanwhile against whom he could have brought his action ( />), 3. Commencement of riinning of Statute. By sectirn 5, sub-section l,the time at which a right of entr}' or of bringing an action is deemed to have first accrued to a person who has been in possession or in the receipt of the profits of the land, shall be at the time of his dispos- session or discontinuance of possession, or at the last time at which any such profits or rent were or was so received. Mere vacancy, however, will not cause the statute to run {q). The legal title in presumption of law carries with (n) 1 Hayes Conv. 2G8. See also Tichhonie v. Weir, (57 L. T. 735. {()) Postea, p. 266, et seq. (p) Doe d. Cuthbertson v. McGilUs, 2 C. P. 139 ; Delaney v. C. P. R. Co., 21 Ont. 11 ; Trustees. Executors and Aijency Co. v. Short, 13 App.Ca. 793. (q) As to the case of land abandoned without iiiiy intention of return- ing to it, see Doe d. Cuthbertson v. McGillis, 2 C. P. 133 ; Pringle v. Allan, 18 U. C. R. 583. 26G TITLE HY POSSEHHION. it tlio poHHOHsion of liiiul not prove*! to be in the uctual urn I vJHibh; occupation of an advei'He holder (r). DiHcontinu- ance of poHHe.ssionHi^niHeH that there niiiHt he; ahandoninnit of possesHion hy one person followed by the actual poH.ses- ision of another (.s). The time therefore c«)nMnenceH to i ini against the true owner from the wronj^^ful taking ol" posaesHion , and as between the true owner and a usurper the latter nnist have been in possession for the full period prescr!bede[)endent trcHpaHserH {z). While tlie abH«!nce of the true owner muHt have been continuous in onUjr to make the statiite run af^ainst him, it was lield not to be necessary tliat the occupation of the trespassers should b<; continuous or connected with each other, if the dispossessed owner was seeking to recover possession as a plaintiff' against the usurper in possession at the ex[)iration of the statutory period {a). But when any person was claiming as plaintiff' to recover on a possessory title against the dispossessed owner who had regained possession, he must have shown either a continuous possession in himself as against the owner, or a connected cliain of title through other tres- passers under whom he claimed for the full statutory period (6), No such distinction, however, exists. Where tlie acts of occupation of successive trespassers are continuous and connected with (sach other, they are as the possession of one man, and there is no difficulty in treating the paper title as extinguisfied if the owner has been out of possession for ten years. But where they aie separated from each other by intervals of time during (.t) Anker v. IVIiitlock, L. R. 1 Q. B. 1 ; Yem v. Edwardt, 1 De G. in to run from the first aecruintj^ of such a ri<;ht. This then is not tlf ri^ht of entry contemplated by the statute. It nuist theieforo be a right of entry as contra-distinguished from possession. It is perfectly plain that there can be no right of action without a defendant, or right of distress for rent without a tenant. It is true that an ejectment may be brought as upon a vacant posses- sion, but then this is only necessary when some person has been and is in constructive possesion contrary to the right, and when it is desired to have judgment on the title. I think, in like manner there can be no right of entry in contra-distinction to the possession, unless there be a person in possession, actually or by legal construction, upon whose wrongful possession the entry is to be made." It has been said in other cases too that the possession must be continuous, but in these cases the evidence disclosed a re-entry in each case by the ow^ner during the intervals of vacancy {[/). The matter has been finally set at rest by a decision of the Judicial Committee of the Privy Council (li). Lord MacNaghten, in delivering the judgment, after referring to the doctrine that when the statute once begins to run it never stops, except by the owner going into posses^'on, said : " Their Lordships are unable to concur in this view. They are of opinion that if a person enters upon the land of another and holds possession for a time, and then, without having acquired title under the statute, abandons possession, the rightful owner, on the abandonment, is in the same position in all respects as he was before the (g) Canada Co. v. Douglass, 27 C. P. 343 ; Lewis v. Kelly, 17 C. P. 250; Henderson v. Harris, 30 U. C. R. 360; Clements v, Martin, 21 C. P. 512. (/») Trustees, Executors d- Agency Co. v. Short, 13 App. Cas. at p. T'GS. 270 TITLE HY POSSESSION. intrusion took place. There is no one against wlioni he can bring an action. He cannot make an entry upon himself. There is no positive enactment, nor is there any principle of law, which requires him to do any act, to issue any notice, or to perform any ceremony in ortler to re-habilitate himself. No new departure is necessary The po8.ses8ion of the intruder, ineffectual for the purpose of transferring title, ceases upon its abandonment to be effectual for any purpose. It does not leave behind it any cloud on the title of the rightful owner, or any secret process at work for the possible benefit in time to come of some casual interloper or lucky vagrant." Inasmuch as the doctrine has now been exploded, that the paper title may be extinguished by a succession of independent trespasses, without any one of the intruders having been in possession for the statutory period, it necessarily follows that their relative rights do not depend upon the statute, unless one of them has occupied the land for the statutory period. If the first trespasser is dispossessed by a subsequent one, the possession of the first is a sufficient title upon which to maintain ejectment against his disseisor (i). But where the disseisor remains in possession for the statutory period, and thus extinguishes the paper title, then, though there is no parliamentary conveyance to him of the estate of the true owner, yet he may defend his possession against his disseisee. For the right of the disseisee to bring an action to recover the possession is also barred by the statute. But if an intruder voluntarily abandons the land, which, being vacant, is taken possession of by a second intruder, the latter may retain possession as against every one but the holder of the paper title until that has been extinguished. (i) Asher v. Whitlock, L. R. 1 Q, B. 1. AUEA AFFECTED HY POSSESSION. 271 5. Ared njf'eded hi/ ])<>ss(;ssi(m. (i) Mn'd trrHptiHsi-r. Tlie posHesHion necosHury to oxtinouish the paper title must be open, visible and exclusive of tlie true owner {j). It must also be continuous and not consist of repeated acts of trespass (k). And the true owner, boinj; in constructive possession of all land to whicii he has a paper title, can only be deprived of Ids title to those parts from which he has been actually excluded by the trespasser. That is to say, the trespasser can only claim title to that portion which has been actually occupied by him, or of which he has had what has been called pedal possession — jyot^nrssio pedis. Where possession has been taken of a house with an adjoining enclosure, or an enclosed piece of land has been continuously cultivated and occupied or otherwise exclusively used and enjoyed by the usurper, no (juestion will arise as to the extent of tlie land to which he gains title. But where the land is unenclosed, or generally of such a character that an entry upon any part of it would be equivocal in its signification with reference to the extent intended to be occupied, then the only safe rule is to confine the trespasser to the actual area from which he has by visible occupation excluded the owner. There have been general expressions in some cases which have been cited for the proposition that a trespasser who enters upon open woodland or other unenclosed land is in constructive possession of the lot by its boundaries (I); but much stronger expressions, in fact, binding decisions, are found to the contrary (m). The current of ( j) McConaghy v. Denmark, 4 S. C, R. 632 ; Shepherihon v. McCullough, 45 U. C. R. 602, approved ii>. Harris v. Miidie, 7 App. K. 430. (k) Coffin V. N. A. Land Co., 21 Ont. R. 80. (0 Heyland v. Scott, 19 C. P. 165; Davis v. Henderson, 29 U. C. R. 344 ; Mulhotland v. Conklin, 22 C. P. 372. (m) Hitnter v. Farr, 23 U. C. R. 327 ; Weld v. Scott, 12 U. C. R. C57 ; Doe d. Mcdnnnell V. Rattray, 7 U. C. R. 321 ; Doe d. Beckett v. Nightingale, 5U. C. R. 518. »»7») ^ f M Tll'l.i: liV I'nssKssinN*. tliM'iMioii wiiM, iiiilil ilii< ( 'txnti <>|' A|)|M'til liiinlly srl, lln pniiil III D'mI, tlrriiliMlly ill r»lVoiir nl' |Im< view lliilt, uiily (||i> lillc (i) IIimI |Mtiiioii iichinlly Ml(/i), Mixl timl. iM.'iy now l»t' niiiMidcrcij i\h (lie MrlMrd nilc, IT (Ikmc \vrr»> no miiix cy or y nny |to.M^.il»ili^y l,c cxtcixltMl liryond (lie iir mi nctiiMlly o(>('ii|ii(M| liy liini. Anij (he iiKMo (li\ isioii ol' |)imnr|»os('s of title only, on;;lit not. !<» Ih' n'Miudiil as iiindc in I'liNdur of n ti'cspMsscr, mid mm coiiMtriicliN cly oxtcndiiii; liis |to,sM('ssion to tin* liniitM of nny lot, ii|Min wliicli lie niJiy Iimni- mtcicd (7). Tlie piinciiilc! njnin which tlu> ('onrt. i»r Appi'Ml |»roc('«M|('d in llarils \. Mtiil IC IS \t>r\- »'lt'iirl\' stilted l.v Ihiit on. .I.A. ori^in.'il t.'iUin;;' oi' possession Itciii;.; wron^jiiil niid witlioiil, colour ol' linhl. how cjiii the phiiiitiH' he deprived ol' nioiv tliMii the dertMid.'ints hitve iU'limlly <'ultivnieil or inclosed. Theiv' CMii in such a. case he 110 const riK'tix'c possession, i'or tlu> coiistructi\ e |)osse,ssion is in the person liaviii;^ the lee^al tit1i» ; hoth cannot, he in constructive possessi(tn of the saine land. The doctriiu< of constructiv(! possession can ohviously ha\c no apj)lication to the case of a tres- jiasser, and it could not he carried out without hccoiiiiii;; involved in serious ditliculties and ahsurditios. If there are throe S(piatters on u 200 acre lot, each cK;arinjnr and cnclosinn^ an acre or two on separate portions of the lot, are they by length of possession to heconie ahHolute and several owners of the portions they have respectively occu- (n) Harris v. Miidie, 7 App. R. 421, ilM. (0) 46 U. C. R. 573. ip) Harris v. Mudie, 7 App. R. 430. (q) Shepherdson v. McCuUoiigh, 46 U. C. B. 605. AllKA AriK«"n;i» MV l'n.;si;ssin\. 27:{ |iii'-«|, n\u\ triiiiiitH ill ('iiiniiion ul' tlir |iorMi>iiH over wliicli tliry liiiA'c coiiiniit'tril i|«-|»i-<'i|ti,M()iiM hy ciittiiii^^ Mir inoHt viiIiihI*!"' iiiiiltfr ; or il' Mh" iiortion ho «'lcn,i«'(| |ia)))i« lirnt cmmi; in our own ( 'oiirt,M ill which n iii'l/^iiii'iit curi hr roii!ir deprived of it hy any ideal coiiHtnu'tive poHHCHHion conHiHtin;^' of oc.ca- sioiial HctH ol" treHpaHH :* . . . There oiinht, I think, t«* he no dillienlty in conlinine' a mere trespasser to the portions IVoin which he excludes tin; true (»wner hy liin actual residence or oc(!Up!ition, that pedjil possession whifdii tlu! (Viurts roniierly had no ^reat dilliculty in defining; the diiruMilty rather arises in lindiii;L,' a satislactory r<;aHoiji I'or enhirj^in^ and (^\teudin;^ the possession h(!yf)iid the p(trtion actually and visihiy occupi(!d, so as tf) include tlio whole land, wild and uncultivated, vvhoro tho pJirsou in occupation enters uiuhjr a det'ectivo titlo." It may also ho obsorvcd that the notion of tho acfjuiHi- tion hy tlu; trespasser of any more land than tluit actirally Hiid visildy occupi tiifcfril him mi nocount <' 1m>»>h Mchinlly in pussofHintt 'Vho iss\io lM't\v«'on tho tl\(» nholi^ of tin* lantl <<> \vlii<>l\ Hu» nntKi has title, bnt one ol' tlie I'aot of t>xolusi(M\ from a ocrtain aifa W'luM'o tli»> l'\nil i^ not fouiMMl, luit a Maxt']inptor^ anM tluil aots of o\>norHhi]^ \ip to this line will har the tnio o\\n''i of hi^ title io tho lan^l n)ion whioh tho acts am yv\ I'onviod v)'V This ileei'^ion, ho\\t>V(>r. oan hav»lly ho vtM^onoih^l witli th.^ jMinoijile en\nuMateil hy the ('o\nf nf A]^ptMi| to it {i). ^\\\ovi\hi^\\i^\o\\i\\o \is\n-)vM' is not a more wtianotM. hnl ontevs \intl(M' a nvohase inon<\v it was hehl that his posseHsion nuist l't> r(^f(Mre(^ to the wlioh* lanr eoiiM m't W oonsi(hMV«l as havinjj heen \\\ eo»\structive poHsessiou el the portion not aelnally ooenpie.l {r). The issue hetv.eer. thi^ true owner atvl «)ne who enters under ^ «lefeotive title heoomes ot\e of title nntl not o\' possession. I't^hM* a valid title the possivssion wonid hi' co-oxtensive with the ho\n»daries desorihed in the ooii (r) Stefr/t v. Sh,iit\ 1 Ont. U. '2(\. (t) Mcdrefior v. KeiUer, 9 Out. U, "77. (h) UryUmd v. StVf*, \9 C. V. l^."). (r) M<-h'i7inon \ . McDonald, IJ) Gr. 152. Hog also Mfyfv* v. D-'yi^, H C. P. 371. FNTin iNitKn I'll?;* iivi.; rri?,r:. 27; is '\\\ r.'M't H {)■>"*] (t'^'^tM , \""t Ili^tMlhv WMlll'l nivc lljli) )l liirllt ti» inMinttiin hpspn^is njidiM'^l niiy "UfHulispinitMilly (>nt(Mifii{ >Y ititouj rialil III'), nt)i| "jm winiM lt\- CMtmliiK'linK m(' | a\v ('x<"i\'l 1" fli'^ liiuiN "^I'l liv lii'^ niii\ t'VfUM'tv nSMOH'^l'M* I' " WIhMP JUty Mt'kll'iwIP'loMMMit tif ♦)(•> lillf i<\' lln> ji>M4m|| ontitlt^'l I't »iny Imii"! nr tt>Ml Iimm Ihh.m ^ivtii ♦<> liiiii >iy \<< his nutMif in wiilinjr, Rimif'l l>y Hh^ |ipixmm iti iiMtscjpqtiiim mi \\\ fooripf nl" tlH> jMnfiis III' Hiicli hiii'l, "I it) tli'^ riM'tijil m|" <\\r\\ I'pni. ftii'li |intmt>f)si()n or oocijii n\' ni- liy tln^ ikm^'^u ! y wlinin HMt>ll acUuMwIpilirilUMlt V,n'^ n i ViMI slldll lii> i|i'iM>|i>'l, M('fi»r'lifU{ ill Hit^ luomiin^ ••!' Iliif^ Act. tn lunt^ Ihm^i tlio pnssi'q^idM '•!• riH'fMjit (if ny liy (lip jKMHMU tii wlmm or (u wliimr iii(»'?it swell !irkui|i)in(M>< \\i\h ^ivfMi ni IIh' Hum' n\' Kivinir Hii^Mnjiin, (inij Hie liulit. nl' bucIi lii'^t-nnMiiiniipil pMiqi'ii. "i ..I' nny I'tTSim olniiniiiy tlirmiirli liim. to mimIr miu'Ii luii'l of mut. <^|imII I>(> t|iMMni'flirmrnf to lir in wiitinj/. an*. iW. Heo alun lMfH»o,t V, Ihtlry, 11 (hit. U r.f.a, (x) U. H. U. I'Rp. 111. flpo. i;«. ((/) /'or <(em. Vfivu V. Utinliriion, W V. ('. U. 1^<'> ; /'"f (/'"i. .^iuim'im v, .Uiii//ii.rHf. i> r. (V U. 4a.'«. (i) Milhr V. IlitmcliH, 'i Out. U. 10i«. mm 276 TITLE BY POSSESSION. left his father in sole possession for some time, and then the father joined the son in reprosentino- the latter to be the owner in order to procure a loan upon mortgage of the land by the son, the father continuing in possession, with- out acknowledgment, it was held that time commenced to run against the mortgagee from the time of the execution of the mortgage ; and tlK*t the father could not claim the benefit of his possession prior to that date as against the mortgagee (a). Though the acknowledgment must be in wi'iting and signed, yet parol evidence may be given of such an acknow- ledgment whenever such evidence would be admissible under ordinary rules to prove the contents of a written instrument (b). The acknowledgment nmst be signed by the person giving it and not by an agent (c) ; but the signature may be made by an amanuensis signing the name of the person making the acknowledgment at his dii'ection (d). It may be made either to the person entitled or to his agent (e), but not to a stranger (/). An acknowledgment to a vendor who had not executed the conveyance, but was hold by the Court to be trustee for the heir of the purchaser, was held to be a sufficient acknowledgment of the title of the heir (g). And an acknowledgment written after the death of a testator contained in a letter to an attorney who had collecced rent for the testator in his lifetime, and was at the time of the acknowledgment acting for his executrix, was held a sufficient acknowledgment of the testator's title (/<). ('() Boijs V. Wood, 37 U. C. R. 495. {b) Haydon v. Williams, 7 Bing. 163. (c) Ley V. Peter, 8 H. & N. 101. (d) Letsee of Dublin v. Judge, 11 Ir. L. R. 80. (e) liuttan v. Smith, 35 U. C. R. 165. (/) Markwick v. Hardingham, 15 Cli. D. 339. (ji) Mclntyrc v. Canada Company, 18 Gr. 367. (h) Fundon v. Clegg, 10 M. & W. 572. ACKNOWLEDGMENTS. 277 It appears not to be necessary that the person making the acknowledgment should precisely understand its nature, if in fact the acknowledgi.ient contain a true admission. So, where it was alleged that the agent of the owner made ■certain misrepresentations to a trespasser as to the nature of a document which he wished the trespasser to sign, and which contained an admission of the owner's title and an acknov.'ledgment that the possession was only by sufferance, it was held that even if the allegation of misrepresentation wore true it would not have affected the validity or operation •of the acknowledgment which contained a true admission of title (i). But where persons claiming under the heirs of the original owner represented to an illiterate person who liad been in possession long enough to extinguish the paper title, that he had no title whatever, and so procured him ■to execute and accept a lease to himself for two years, the Court set aside the lease so obtained (j). In such a case the acknowledgment, coming after the paper title had been extinguished, would on that account be insufficient to revive it (/*:). The acknowledgment need not be in any form as long as it contains an admission of ownership in the person to whom it is given. Hence a written application by a tres- passer to the owner of land for the purchase of the timber on the land has been held a sufficient acknowledgment of title (l). And a letter reminding the owner of an agree- ment to allow the writer to occupy the land for his lifetime, begging to be allowed to remain on the land, and promising that he would " still act as agent " in taking care of the land and keeping off trespassers, was held sufficient (m). (t) Ferguson v. Whelan, 28 C. P. 112. ij) Hillock V. Sutton, 2 Ont. R. 548. ). A notice to quit by the owner to a trespasser will not interrupt the running of the statute, though a notice by the trespasser to the owner to determine an alleged tenancy might have that effect {q). '■US' (n) 29 Gr. 258. (o) Ruttan v. Smith, 35 U. C. R. 105. (p) Williams v. McDonald, 23 U. C. R. 423. (q) Doe dem. Amman v. Minthorne, 5 U. C. R. 426. ACKNOWLEDGMENTS. 279 The effect of a sufficient uclcnowledgmeiit under tlie statute is to make the possession of tlie person making it the possession of the person to wliom it is made (?•), and is e(|uivalent to a removal from possession of tlie person making it («). The statute may also be prevented from running by the usurper's ac(iuiring an interest by conveyance from any one against whom he claims, such an accpiisition being an admission of title and putting the usurper in under the conveyance (t). And where a devise is made to a tres- passer of an interest in the land which he occupies and he neither accepts nor renounces it, but remains passive, he will prlmafdcie be considered as holding under the will and not by possession. The devise of an interest in the land is in such a case a benefit to him which he is presumed to accept, inasmuch as it gives liim an estate where before the devise he had but the bare possession (tt). (r) Cahuac v. Cochrane, 41 U. C. R. 436. {») Canada Co. v. Douglas, 27 C. P. 344. (t) Gray v. liichford, 2 S. C. R. 431. ' (u) Re De/oe, 2 Ont. R. 623 ; Re Dunham, 29 Gr. 258. 280 TITLE HY INHriRITANCE, SUCCESSION, DEVISE. CHAPTER XII. TITLE nv INHEUITANCE, SUCCESSION AND DEVISE, 1. Inheritance. (i) Evidence genenilh/. (ii) Descent before ISir'i, (iii) Descent after 1st January, lSf)i\ (a) Estates piir aut^'e vie. (iv) Statutory evidence. 2. Succession hi/ personal representatives. (i) Trust estates. (ii) Bare trustee. (iii) Dersonal representative of vendor. (iv) Married Women's Act, ISSJ4. (v) Devolution of Estates Act. 3. Wills. (i) Before 1871 (ii) After 1st January, 1874. (a) Attestation. (b) Execution. (c) Miscellaneous. (iii) Married women. (iv) Registration. ^ 1. Inheritance. A title by descent is always viewed with great jealousy, and it has been ranked by conveyancer ; amongst the worst of titles ; and if it depends upon several successive descents, INHERITANCE — EVIDENCE (JENEUALLY. 281 it ImH been Haid to be scarcely marketable (?;). And nUIiouj^h Tor a abort period under tbe Hysteni wbereby land as well as personalty is cast upon tbe personal representative (?/»), it was perhaps more easy to make title on an intestacy than under the former law, yet tbe amendments to Tlie Devolution of EniaUs Act, whereby the land shifts about from the personal representative to the beneficiaries, and back a^ain, without a conveyance, have ma stahitt' t>r N'ictufia iiicliiilcs (vstnins " licM for the lilt' (tl" nnotlicf " (('). 'lliis |iIii.ms(' iin tloiiM, inclinlcd nil tvst.'itrs fMii' iin/rt' i'i/\ wIu'IIht limited to (lir licir .in Hpt'cijil (M'('U|t!»Mt or not { /»». So that cNcry cHtittt' /)///• mi/rr r'lr (IcvscciHlt'd iimlt'i' this Act ill the Htiliio liuuiMt'r n > M, !'<'(> sim|)I<*, unless it. was a trust pstatc, in w lii.'li caMc it • jt'scciitlcil as if tlif Act had not. Iiccn passcij (ij). rill' Ihrol III iiHi of h'sfiilix ,1(7, /.s'.sV/, liy its terms applies to "estat.es limited to the heir as special occu- puut "(/•). This phi'ase, hy its «'xpresM terms, includes only siicji estates y)(n' (n///V' r/r as ai'e limited to the heir. ( 'oiisc- • [U(>nl.ly all such estates (includinn" trust estates) now p.iss to the personal r(>|)rt>sentative, whilt! other estat(>s / (latri' vie pass under the statute ol' Victoria )ii I' (iv) Sidliilnri/ rv'iilf'ih'c. Every clero-ym.in (.v) celol)ratin;j^ a m.arriasjfo is hy statute hound to ^^ive a certiticat*; thereof to the partiis and to enter a triu* record of the .same in a hook (/). Ih^ was I'onuerly (/<) hound to nuiko a return to tlio Ue^istriU' of the county ; and tlie lle«^istrar was to enter tlio return in a book, and his cortiticate was evidence of the niarria«:c (()) K. S. (). Clip. 108, sec. '2S, Hub-sec. 1. (/>) See Leith & Sni. BI., p. '2.S',), as to Occupancy. iq) R. S. (). cap. lO.'^, sec. 49. (>•) Ibid. Bee. 3 («). (.t) It has been hold that this Act applies to all reli^^ious denomina- tions, whether Christian or not. A Mormon marriaf»e (plural marriagts beinc observed hy these oIliciMls. The certilicate of th(( (;h'r;^yiiiaii hein;;' one which he is hound to ;^n\e hy statute is also evidence ol" the inarriii^e ; ^iid in a iii.ittor urder the (^)uietin<4 Titles Act, ailidnsit evidence of a iiiai- y'lii'^a was rcd'iised Until the altsencc of the (!ci'tilicate was uccouiit(!d ror(''). " ICv(!ry cltirnyinan, teacher, minister or other person authori/.(Ml l>y law to hiipti/e, marry or peirorm the riiiieral sei'\ic(! ill ( )ntario, sluill keep a re;;istry showiii;^' t he pcsi'soiiH whom liu has hapti/ed, or mai'ried, or who have died within his cui-e and ludon^^iiio' to his con^^re^alion " (7/'), III! is also bound to make a I'oturn to th(j clerk of the munici|)ality, who is a Division Kc^istnir, of all niarria<;cs which he has c(d(d)ratcd (.'•). Tho father of any child hoi-n ill this Province or in case; of his death or ahseiice th part ion Inrs of iiiarria^os ami births avo forwaiilnl to tho Hoi;istrar-(HMUM'al, tho Pi-t»\iiu'ial Socivtarv. who koops th^Mu as ivoonls in his otliiv. ami extracts thoivfrom oiM'titioil l»y hiiM arc i^vidcnco of tho facts ccrtitictl (^:K Proof of macriaircs ai\(l births luav hv this means In- «jjivcM ; ami tiiis |iro*>f o\' birth is to be picfcrrcd to a ocr- titicatc o[' baptism which is no I'vidtMicc of the exact ai;c of the chihl, tlumj^h it may b(» o-ood evidence oi' its legiti- macy (^i(), nidess the cleri;ymaa who performed the rite of baptism t^ntered the a^e o[' ti\e child at the titne, in which case it wonld lu> evidence to a conv»>\ atu'er of the a^e. lie ( leal) » am 1 1 aina 1 oi an\' chill !ren or o.tlier ptM'SOUS \\ lio miu'lit have inheriti'd ma\' be proved hy olVu'iiil certiticatt^s. as in the case iA' marriages and births. The occnjMtM" o( any lionsi> in which a iK>ath has taken plac(> or some person I'csidtMit in the housi* if thi' t)cc'.ipier has died, or tlie cori>ni>r who has attended any iniinest, is ret|nired to n>povt tlu> di>ath io the Oivision Kei;istr;ir, wiio is to i;ive a certificate ti^ any person jvunirini^' the same for th»> purpose t>f bnrial {!>). And e\ cry minister ori>ther ptM'son who piM'bu'ms any fniu'ral servict\ imlcss lu» has nu'cived such a certiticate, is re'piired to make a retnrn o\' the di>ath ti> the Division l\ey;istrar (^(*\ And e\i'ry medical }>ractitiiMUM- who was last in attendanc(> durini;" the last illness oi' any person is rcipiired to niake a ri»tnrn oi' the death to the Division He^istrar (^(/V These (;/) Iliiil. stv,. H. (.) Iliiil. MOO. 'J;<. (.1) (\»v. Con. Kv.'iSl. (M H. S (). oiip. !U), scos. U, If). (c) Ibi-A. soc. 10. ((/) IbU. »cc. 17. sriVKSSlOX IIY riMlsoNM, UF.rUKsKNTATlVK. 2SJ) n'tunis aiv forwanlod to t\\o Ut\i;istrar-(u>noral, whoso i't'rtitii.'Hti> is oviiloneo of tho t'aots eoititiiHl. Kv'ulouoo ii>a\' alsi> bo «2ivi>u in i>tluM" wavs. Tims, ilvH'larativ>us ol' a lU'Coastnl parent an> oviilonoo o( {\w time of a child's birth (c^; and an ontry by an ai'i-vnu'honr ol" his havinu" «loliviMVil a wojajin ol' a oiiihl on a r; atttMidanoe which was njarked paid, has In-en receivcil ;is evidi'.'U'o ( /). In the absence t>l' direct testinuaiy as to nu-irria-^t's and deatlis. resort is sonietiines had to presnmptiiMis, Hnt in the case ol' prt>snin sufhci<'nt as betwt>en vendor autl [uu'chaser. The evidence must be such that a judj;;e wouM ii'ivc a cK>;ir ilin'ction to a Jury in I'avoui- ol' the I'act hel't>re it will be presumed as against a ^nlrchaser^^l/V A innvhaser I'nan an heirat-law ov yiv\'\svc belore T/ir Ih'roluf'nui Of' A'^'l^f^•^' -1(7 was not bound to rei|uiri> proof that tiie di>bts oi' the ancestin- hail lu>en p.-iid. \n\l took .n uood title at an\- time befort> iudunient ;>.nd execution a^-ainst tlu> p-ersoual )'i>pres»>ntative (^AV 'J. StitVi'ssioii f>if pri'fttuittl r< pirstDtittirr. {\) Trust fs/cjff s. All cst^ites o[' inheritance descended tv> tlu> eKh^st son U^fore the statute of Victoria. \Vhei\ that Act was passed, under which lands descended io all the children cipially. laiuls held in trust were expressly c\cepti>d from its operation, antl tlu>y were allowed to dosc«Mid as if th(> Act had not been passed {i\ When, in iSSii. /'/'<(' Df-rolutiin) of {«•) l\n. (\m>. Kv. -JSl. (/) }li,itutm V. UhliiUiiij, U) Kut*t, lOit. (.») Si-o.jhN'. Ch. VI. (/i) Keiiiw MiU,-i\'2iV.C. U. I'.U); (.'.M.ic-u v. (mu./.h, Mihit K.tUl. (i) K. S. t>. IS77. oup. 10:>. soo. 10. irri.rs lit 290 TITLE BY INHERITANCE, SUCCESSION, DEVISE. II 1 *'■ Estates Act was passed, it was vnacle to apply to 'all estates of inheritance in fee simple, or limited to the heir as special occupant." Since trust estates were not excepted from tlu; operation of this Act, as they were from the statute ol' Victoria, they no doubt fell within its provisions, though in no case, as far as the author is aware, has the question arisen. Upon the revision of the statutes in 1887, the clause oF the statute of Victoria which excepted trust estates from its operation was retained. Sections 27 and 49, which apply to this matter, are so obscure, each section in terms excluding the operation of the other, that it is impossible to extract any moaning from them alone. But as the second section of the Revised Act (j) makes .succession by the personal representative apply to the estates of all persons dying on and after 1st July, 1886, and as the Revised Statutes are not to opoi ,.'.; as new laws (/.;), we may come to the conclusion that trust estates, not being excepted from the operation of llie Devolution of Estatei^ Act, 1SS6, will vest in the personal representative of the trustee. Sit :,»'!;l m. (ii) Bare trustee. By the Trustees and Executors Act {I) it is declared that upon the death of a bare trustee of any corporeal or incorporeal hereditaments of which he was seised in iw simple, they shall vest in his legal personal representative from time to time. A bare triv t'.ie has been defined as " a trustee to whose office no duties \v\itQ originally attached, or who, although such duties were originally attached to iiis office, would, on the requisition of his cestuis que trust, be compellable in equity to convey the estate to them, or by (;■) R. S. O. cap. 108. [h) 50 Vict. cap. 2, sec. 9. (I) R. S. O. cap. 110, sec. 6. [SE. BARE TRUSTEE. 291 all estates • as special :l from the statute ol" ns, though 16 question le clause oi" states from 49, which on in terms ; impossible s the second don by the all persons the Revised re may come ccepted from ^t,lSS6,\\i\\ ee. is declared corporeal or jeised in fee ipresentative efined as " a lly attached, attached to lis que trust, them, or by their direction " (m) ; and this definition has been adopted by Hall, V.C. (n), and approved by Stii-ling, J. (o), though criticized by Jessel, M.R. (2>). Under an Act to enable infant trustees and mortiroiiees to convey the le^jal estate under an order of the Court of Chancery (q), it was held that the infant trustee must be a dry trustee, which is perhaps tlie ecjuivalent of a bare trustee (r). And therefore tlie decisions under this Act may serve to elucidate the matter. They form themselves into two classes, viz., cases wliere the trustee was also beneficially interested in the property, and cases where he was charged with the performance of duties in connection with the trust. Trustee henef daily interested. — Where an infant executor was beneficially interested in a residue whicli comprised mortgage money, and the mortgage money was paid to his co-executor, it was held that, as the payment to the co-executor was a good payment as against the infant and discharged the mortgagor, the infant, who was seised of the legal estate in the mortgaged land, ceased to have any beneficial interest therein, and became a dry trustee of the mortgaged lands, and so liable to convey under the order of the Court (.s). A similar case was Ex ^mrte Bellamy [t), where mortgaged lands descended to an infant, the moneys being disposed of by will. The pay- ment to the executor being a good payment, the infant, though beneficially interested in the money, was held to be (m) Dart. V. dc P. 6 Ed. p. 587. (n) Christie v. Ovington, 1 Ch. D. 279. (o) Re Cnmiingham <& Frayling, L. E. (1891) 2 Ch. 507. (p) Morgan v. Swansea, 9 Ch. D. 582. {q) 7 Anne, cap. 19. (r) V. Handcoek, 17 Ves. 383. (s) Iv. Handcock, 17 Ves. 383. (t) 2 Cox, 422. 53" ■■'>■' 292 TITLE ]JY INHEIUTANCE, SUCCESSION, DEVISE. a dry trustee of the land for the executor. And where there was a devise in trust for a life tenant, and to support contingent remainders, etc., on the death of the trustee intestate, his infant heir was held to be a dry trustee, having no beneficial interest in the land (a). And where a vendor had received all his purchase money and died intestate under a liability to convey the estate, his infant heir was held to be a dry trustee (v). But where there is any beneficial interest in the person seised, he is not, while that condition lasts, a bare trustee. And so where a vendor died intestate without haviiiff received his purchase money, and therefore having a lien upon, and a beneficial interest in, the land, it was held, under the modern enactment, that the estate did not pass to his personal representative (iv). And where there was a devise of land to an infant charged with the payment of debts and legacies, and it was found upon a reference tli.at the land was not sufficient to pay the charges, the Court held that the infant devisee did not become a dry trustee, under the statute of Anne, by the finding of the Mas- ter (a;). Trustee with duties. — Where a trust for a charity descended to an infant, and he was relieved of the duties of the trust by the appointment of new trustees, and a conveyance to them was directed by the Court, it was held, under the statute of Anne, that the infant came within the Act because he had been relieved of the duties of the office, and had nothing to do but convey (?/). So where lands (it) Hawkins v. Ohem, 2 Ves. Sr. 659. See Ex p. Carter, 5 Madd. 81. (r) Ex p. Vernon, 2 P. Wms. 549. But see R. S. O. cap. 110, sec. 2G, as to conveyance by personal representatives of a vendor. (w) Morgan v. Swansea, 9 Ch. D. 582. See Wall v. lirijht, 1 J. ct W, 501 ; lAjsaght v. Kdwardx. 2 Ch. D. 4y9 ; lie Flatt d' Prescott, 18 App. R. 1, as to the trust rel&tionship of vendor and purchaser. (.t) Anonymous, 3 P. Wms. 388, n. {y) Attorney -General v. Fovifret, 2 Cox, 221. ij BARE TRUSTEE. 203 were devised to two married v. oinen upon trust for sale, the devisees being entitled to share in the proceeds, and the estate was administered by the Court and ordered to be sold, it was held that the devisees were bare trustees, havinf? no duties to perform but to obey the order of the Court, though beneficially interested in the proceeds of the sale {z). It appears, then, from these decisions, that the trustee must not only have no duties to perform, but must have no beneficial interest in the land. He is the mere depositary of the legal estate. It will be observed that this enactment is not restricted to cases of intestacy, but applies to all cases. In England. a similar enactment (a) was repealed, and in lieu of it an enactment in the same terms, but confined to cases of intestacy, was passed (b). Since 'fhe Devolution of Estates Act, ISSG, was passed, whereby all estates in fee simple, and estates limited to the lieir as special occupant pass to the personal representative, it is perhaps not a matter of much moment at the present time to ascertain with exactness the correct definition of a bare trustee. But estates which devolved prior to the passing of the latter Act were within the enactment first treated of. The amending Acts (c), which provide for the shifting of land into the beneficiar'es if a caveat is not registered, ) 38 & 39 Vict. cap. 87, sec. 48. (c) 54 Vict. cap. 18 ; 56 Vict. cap. 20. 294 TITLE BY INHEllITANX'E, SUCCESSION, DEVISE. implying that it is only property which may be required for the purpose of the testator or intestate's estate that is affected. (iii) Fersonal representative of vendor. By the Trustees and Executors Act it is declared that when any person has died under a liability to convey in pur- suance of a w^ritten contract, either intestate, or without having made any provision in his will for the conveyance of the land, then the administrator, the executor, or the admin- istrator with the will annexed, as the caae may be, is the proper person to convey {d). This enactment, which was in force prior to The Devolution of Estates Act, 1886, is retained in the Revised Statutes, but is not of importance since that Act was passed. (iv) Married Wome^i's Act, 1S84- By The Married Women's Property Act, 1884- V^), it is enacted as follows : — " For the purposes of this Act the legal personal representative of any married woman shall, in respect of her separate estate, have the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living." In the absence of an express declaration it may well be doubted whether the real estate of a married woman was intended to be cast upon her personal representative in preference to her heir-at-law ; but it is difficult to avoid the conclusion that that was the result, if full effect is to be given to this section. The term " separate property " is frequently used in the Act to denote both real and personal estate, and the expression " separate estate " is treated as its equivalent in the sixth section. In the twenty-third section, where personalty (d) B. S. O. cap. no, sec. 26. ^" («) 47 Vict. cap. 19, sec. 19 ; now R. S. O. cap. 132, sec. 22. DEVOLUTION OF ESTATES ACT. 29 O alone is treated of, the expression " separate personal property " is used, and it occurs nowhere else in the Act. It will also be noticed that the personal representative is subject to the same liabilities as the married woman would be if living; and when we consider the nature of a mar- ried woman's liability, viz., that it is a liability to have her separate estate charged with her debts, it may well be that the Legislature intended to lodge her real estate in the hands of her personal representative, in order that it might there be charged in any action that might be brought against him. In any case to which this section might apply (/), it would therefore be prudent to require the concurrence of the personal representative where the heirs-at-law offer to convey. (v) Devolution of Estates Act. This Act, which came into force on the 1st of July, 1886, has been several times amended, and the period first to be dealt with is that extending from the first of July, 1886, to the fourth of May, 1891. When the owner of land died during this period, entitled to an estate of inheritance in fee simple, or limited to the heir as special occupant, such estate devolved upon and became vested in his legal peraonal representatives from time to time, to be distributed, subject to the pay- ment of debts, as personal property (g). This enactment produces a highly anomalous state of aflfairs upon the death intestate of the owner of land ; for during the period between his death and the appointment of an administrator the land is absolutely without an (/) From Ist July, 1884, to Ist July. 1886, when, by The Devolution nf Estates Act, the lands of all persons were cast upon the personal representative. ig) 49 Vict. cap. 22 ; now R. S. O. cap. 108, sees. 2 to 10 inclusive. ■i,i- 20G TITLE BY IXHEIUTANCE, SUCCESSIOX, DEVISE. 'SB owner. Except in tlie case of a bare truHtee, there is no parallel to it in our law, which before this Act required that some person should always be seised, and in the case of an intestacy always cast the estate upon .the heir-at-law immediately upon the death of his ancestor. It has its parallel, however, in the Roman Law, which provided a fictitious person to represent the defunctus until the heir entered. " Asa rule, a certain period of time, of shorter or longer duration, elapses between the death of the testator and the Adition, or entrance of the heir upon his inherit- ance ; hence, the question must arise, who is the i)arty to be clothed with the legal personality of the Defunctus, or, as the Germans express it, ' Who is to be the Trager during this intermediate period of time ? ' In the absence of a natural person, a juridical person must be found to accept the inheritance, and such a juridical person is created in the person of the Hereditas jacens. This juridical person, for the interval, is regarded as the owner of the things constituting the inheritance. . . . The fiction o*' the personality of the Hereditas jacens ceases the very mo- ment that the heir has entered upon the inheritance" (A). The creation of a fictitious person, however, would not dispose of the difficulty as to seisin. It is perhaps more in accordance --vith the spirit of our jurisprudence to regard those who are ultimately entitled to share in the distriuu- tion, and so equitably entitled to the land subject to pay- ment of debts, as the equitable owners of the land pending the appointment of an administrator and subject to the accruing of his title. Yet they cannot be said to be seised, nor are they able to make title to the land (i), for any interest they may be invested with is subject to be divestcil by the appointment of an administrator, though an assign- ment of their interest would no doubt pass what they would (h) Tomk. & Jen. Rom. Law, 205. («) Martin v. Mngee, 18 App. R. 384. DEVOLUTION OF ESTATES ACT. 297 ultimately become entitled to on the dlHtribution (j); and any one enterinj^ into actual possession of the land upon or after the death of the owner would probably defeat any other title by remaining in for ten years (/). There is an evident intention in this enactment to exclude the heir (I), so that he takes nothing except in the course of distribu- tion from the administrator, and then perhaps as next of kin (m). The right of the administrator to sell and make a title does not depend upon the existence of debts (n), though if he attempts to sell contrary to the desire of the heirs or next of kin, where there are no debts, he might be restrained (o). But he cannot make an exchange of the land for other property (^?). Thouo-h the letters of administration are now the only possible evidence of title upon an intestacy, they are no better evidence of intestacy than they were l)efore ; and thouo-h payments made bona fide to an administrator whose letters are subsequently revoked are a discharge to the persons making them (7), it is questionable whether a title acquired under similar circun stances would be good, un- less the purchaser could shelter himselt under the Registry Act, as in the case of a purchase from an heir. And so it may be that, in the absence of conclusive proof of intes- tacy, a purchaser could not be compelled to take a con- v;.'yance from an administrator until after tiiS lapse of a. year from the death of the defunctus. (j) Tillie V. Sprinper, 21 Ont. R. at p. 587. (fc) R. S. O. cap. Ill, sec. 7 ; lie Williams, 34 Ch. D. 5o8. (I) Re Pillinff'x Tncits, 2(5 Cli. D. 432. (m) Plomley v. Shepherd, L. 11. (1891) A. C. 244; He lieddan, 12 Ont. R. 781. (n) Re misun d- Tor. Incnn. El. Light Co., 20 Ont. R. at p. 40^5. (o) Ibid.; Re Mallindinc, 10 Dec. N. 226. (p) Tenute v. Wahh, 24 Ont. R. 309. iq) R. S. O. cap, 50, sec. GO. 208 TITLE HY IN'HEIUTAXCE, SUCCESSION, DEVISE. Where an administrator has, under this Act, distributed tlie land in specie, amongst those beneficially entitled thereto, and title is claimed throuj^di the latter, the (juestion may be raised whether the purchaser is not bound to ascertain whether those who have shared in the distribu- tion were the only persons entitled. But as the ri(,dit to share in the distribution is an equitable ri^dit or interest, as distinguished from the ownership of the legal estate, it seems preferable to hold that, in the absence of actual notice, a registered purchaser from one who has taken the land in course of distribution from the administrator shouM be protected from the claim of one who should have shared in the distribution but was omitted. The proper course in effecting a distribution in specie is for the administrator to convey a share to each person entitled ; but though this would be sufficient as regards the passing of the title, it is more prudent to require all the beneficiaries to join in each conveyance in order that their assent to the mode of distribution may be testified. Where the land is devised, then notwithstanding the testamentary disposition, it vests in the executor, and lie, and not the devisee, can make title ; though of course the devisee is entitled to a conveyance from the executor when the debts are paid (r). " Where infants are concerned in real estate which but for the preceding sections of this Act would not devolve on executors or administrators ; no sale or conveyance siiall be valid without the written consent or approval of the official guardian of infants appointed under The Jadicature Act, or in the absence ol' such consent or approval without an order of the Higli Court" (s). The land would not devolve upon an adminis- (r) Martin v. Magee, 18 App. R. 384. (») R. S. O. cap. 108, sec. 8. DEVOLUTION OF ESTATES ACT. 20l) trator in case of an intentacy 1>ut for the Act, and ho in all cases of an intestacy, the official guardian nnist assent to a sale by the administrator, where infants are coMcerned. And where a will has been made devisino- the land to beneficiaries, it would not devolve upon the executor but for the iict : hence, when land is devised to an infant a sale cannot be made by the executor without the likt; consent. But where land is devised to executors in t)ust for sale, it would, apart altogether from the Act, devolve upon the executor ; and in such a case the executor may sell without the concurrence of the official guardian, even though infants are interested in the proceeds of the sale (0- Where the land is subject to a preceding contract it devolves upon the personal representative subject thereto. Hence, where a lessor devised his reversion, the executor was held to be bound to renew the lease in fulfilment of a covenant for renewal contained therein (u). Although the effect of this enactment is to make the real and personal estate one fund for the purpose of administration and distribution (/), yet, in the absence of words exonerating mortgaged land from the payment of the mortgage, it passes ultimately to the devisee suV)ject to the mortgage (ic). Where, however, a testator charged his estate with the payment of all incumbrances upon his lands at the time of his death, it was held that the executors were bound to remove them (.t). In 1891 an important amendment was made (y), which was passed after the decision of the Divisional Couit adminis- (0 lie Boothn Tnti'ts, IC Ont. R. 429. («) lie C. I'. /.*. Co. d- National Chib, 24 Out. R. 205. (v) Re Reddiiv, 12 Ont. R. 781. (tc) Mason V. Mason, 13 Ont. R. 725. (x) Scott V. Supple, 23 Ont. R. 393. iy) 54 Vict. cap. 18, assented to 4th May, 1891. 300 TITLE nV INMEltlTANCE, ST'CrESSIOV, DEVISE. in Mart hi v. Mtiff'fi (z), and seems to proceed upon the jisHUinption that that (locision. wliicli was at'tervvanls revei'sed by the Court of Appeal {>i), was coiTect. The decision of the Divisional Court cast doulit upon the right of the personal representative to make a title; and the second section of the amending; Act re-iterates the power of the executor or administrator to sell the real estate, not only for the purpose of paying; debts, but also for the purpose of distribution. The third section con- firmed sales previously made ; and the followin<^ sections of the Act were directed to the same end. The decision of the Court of Appeal, liowever, removed any doubt that might have existed ; and the sections referred to conse- <|uently vM." Tliou^h the Act refers to the I'e^i.sti'ution of more than one caution, no provision is made hy this Act for the rej^-istration of more tlian one. The caution, a form of wliich is nivcn l»y the Act, is eMectnal onl}- as to tin; hmtls speciried therein ; and by the sanu; s(!ction, snh-scetion four, the caution may 1m^ withdrawn "before the expira- tion of the twelve months." Whether the tw(dve mouths liere referred to is the twelve months from the death of the defn ii'ttis, or the twelve months fi-om the reu'istration of the caution is not clear; hut it probahly i-efers to the twelve months followiuij;' the I'e^istration of the caution. The result of this enactment, then, is that, in the absence of a caution, the devisee or heir, at the expiration of twelve months from the oneficially entitled without a conveyance (/>). Presumably, if the caution is withdrawn before it expires, the estate will shift into the beneficiary, thouj^h it is not specifically so expressed by the Act. The Act is not retrospective ; but applies only to the estates of persons dyinc^ after it was passed (<■), and it is operative although probate may not have been granted of a will or letters of administration granted on an intestatcy {(I). {b) Jiamiis V. Doic, 15 P. R. 2i;». See also Keen v. Cxld, 14 P. II. 18'2. (<•) He Ferijmon, 11 Oec. N. '201. But see oil Vict. cap. 20, sec. 4, and postal, p. b04. (d) 56 Vict. cap. 20, sec. li. 302 Tvn.i: nv inheiutaxce, succession, devise. In 189li another important amendment was made to this law (<■)• By section one of this Act, it is declared that " wliere executors or administrators have throuy;li oversight or otherwise, omitted to rej^ister a caution within twelve months after th'^ death of the testator or intestate, . . . or have omitted to re-register a caution as re(]uired by the said statute, they may register the caution in either case notwithstanding the lapse of the twelve months," on certain comlitions. The conditions are that they shouM register an affidavit of veritication, and (2) " a further affidavit stating that they find or believe that it is or may be necessary for them to sell the real estate of the testator or intestate, (or the part thereof mentioned in the caution, as the cnse may be), under their powers and in fultilment of thtir duties in that behalf; (3) the cimscnt in writing of any adult devisees or heirs whose propert}' or interest would be affected ; and (4) an affidavit verifying such consent ; or (5) in the absence, and in lieu, of such consent, an order signed by a high court judge or county court judge, or the certificate of the official guardian approving of and authorizing the caution to be registered, which order or certificate the juilge or official guardian is to make with or without notice, and on such evidence as may satisfy him of the propriety of permitting the caution to be registered ; and the onler to be registered shall not re(|uire veriticatiim, and shall not be rendered null by any defvct or supposed defect of form or otherwise." It is worthy of notice that the official guardian's certificate is expressly made available v.'here adults are concerned, but no where else in this legislation is he given jurisdiction over the property of adults. It is also woi'thy of observation that the property of infants is n( t expressly provided for at all. The consent of adult devisees or heirs is to be obtained, or («) 56 Vict. cap. 20. DEVOLUTION OF ESTATES AiX ao3 ill lieu of Nftc/V constnt, the order of a judge or the certifi- cate of the otficial guardian. It is eitlier asHUiiied that the official guardian may consent to divest infanta of an estate which has ah'eady vested in them by operatiiMi of hiw, rather a dangerous assumptitm, or their case is not provided for by the statute at all. The registration of a caution under tliis enactment is described by the second section of the statute as ha\ing " the same etlect as a caution registered within twelve months from the death of the testator or intestate " ; tliat is, it prevents the laiul from vesting in the beneticiaries. The magical ett'ect of the statute, as descrilied in its own words, then, is to prevent the propeil^y from vesting in the beneticiaries after it has vested in them, wiiich, when expressed in the vernacular, will prol)ably mean that the land re-vt'sts in the executor or administrator ( *"). This section, howe\er, excepts from its operation, " pcr- scms who in the meantime mav have aciiuired rights for valuable consideration from or through the heirs or ilevisees, ov some of them ; and save also and subject to any e([uities on the part of non-consenting heirs and devisees, or persons claiming under them for impi\)vements made after the expiration of twelve months from the d(>ath of the testator or intestate, if their lands are afterwards stdd by such executors or ailministrators." 'I' wo classes of persons are here provided for: first, purchasers for value from heirs or devisees, and that apparently before as well as after the lapse of the twelve months from the death of the iff/a ucf us. As to these the caution will not take effect. Secondly, non-consentinii" heira or devisees, and those claiminyf under them, who have made improvements t)n the land after the {/) It is said to bo nndeairable to epenk disrespectfully of an Act of Parliament ; Twyrrnxg v. Grant, 2 C. P. D. at p. 4'.U'i ; Setltiiseal Colliery Co. V. lUmnif, 14 App. Cas. at pp. '23(1, 237 ; but there are e.xceptional cases: Hill v. F.ast (ind We*t India Dock Co., l) App. (^as at p. 465; .Utorn$yiieneral v. Cf. E. Railway Co., 11 Ch, D. at p. oOT. 304 TITLE BY INHEUITAXCE, SUCCESSION, DEVISE. twelve months. The land is taken from them by the caution, but the ecjuity for improvements remains, and ii* t!ie lands are sold they are to be recouped their expendi- ture. In the second cla^ss are included " persons claiming- under" the heirs or devisees. This would include purchasers l".)r value, if their case had not already been provided for ill the first class ; and the phrase must therefore be con- fined to volunteers claiming under heirs and devisees, or tlieir assigns in law. The Act, by its fourth section, is expressed to apply to tlie estates of persons dying before as well as after the passing of this Act, and also to the estates of persons dying before the Act of 1891. The latter Act had been iield n)t to be retrospective ; and the estate of a person dying before it was passed did not pass to the heir-at-law ov devisee, and no caution was necessary. The effect oi' the fourth section of the Act of 1893, however, is to make it applicable to cases to which the former Act was not applicable at all ; and great confusion would necessarily result from this ; but it has been held, notwithstandinq tlie express words of this section, that it does not make the former Act retrospective (g). Owing to the great uncertainty that necessarily arises from these amendments, it would not be prudent to rely on the effect of a caution registered with respect to land forming part of the estate of a person who has died before the Act of 1891, 3. Wills. Where title is derived under a will, the probate or a copy sealed with the seal of the Surrogate Court (h), or if it is registered perhaps a copy certified by the Registrar (i), will ordinarily be sufficient proof of the will ; and the (g) Re Baird, 13 Occ. N. 277. (h) B. S. O. cap. 50, sec. 4. (t) The Reg. Act, 1893, sec. 28. But see remarks at p. 121. SE. m by the ins, and il' ; expendi- s claiming purchasers ovided for re be con- levisees, or bo apply to s after the of persons t had been »f a person heir-at-kuv he effect of , is to make .ct was not necessarily ithstandini; s not make \ the great iiendments. if a caution the estate 1. robate or a |rt {h), or if |c Registrar 111; and the L21. WILLS BEFORE 1874. 305 purchaser's solicitor may, as in the case of a deed, pre- sume due execution according to the purport of the will. A will proves itself upon production when it is thirty years old, computing the time from its date and not from the death of the testator (j). (i) Before 1S74. Different modes of execution have been prescribed at various times, and care should be taken to observe the mode of execution in every case. By the Statute of Frauds it was declared that all wills should be signed by the tes- tator or some other person in his presence and by his express direction ; and should be subscribed in his presence by three or four credible witnesses. A witness was not credible within the meaning of the statute if he took a beneficial interest under the will, and so for Mant of a credible witness in such cases, the will was void. Tiiis was altered, however, by declaring void the legacy, and so making the witness competent. By a statute of 1834 (A;), any will executed after the 6th March, 1834 (and by The Wills Act (I) confined to the period ending on the 31st December, 1873), in the presence of and attested by two or more witnesses was declared to have the same validity and effect as if executed in the pre- sence of and attested by three witnesses ; and it was also declared to be sufficient if such witnesses subscribed their names in presence of each other, although their names might not be subscribed in the presence of the testator. It was held that this enactment did not repeal the Statute of Frauds, but that both might subsist together ; so that a (j) Mann v. Ricketts, TBeav. 93 ; Her v. Elliott, 32 U. C. K. at p. 440, (uljin. (k) C. S. U. C. cap. 32, sec. 13. (I) R. S. O. cap. 109, sec. 5. TITLES — 20 306 TITLE BY INHERITANCE, SUCCESSION, DEVISE. .«tit^^ will subscribed by witnesses in accordance with either Act was sufficiently attested (m). (ii) After lat January, 1874-. By the Wills Act of 1873 {n) it is enacted that " no will shall be valid unless it is in writing, and executed in man- ner hereinafter mentioned ; that is to say, it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction ; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall sub- scribe the will in the presence of the testator ; but no form of attestation shall be necessary." Former statutes were repealed, and the mode of execution prescribed by this statute is therefore the only mode now existing. Unless otherwise expressly provided, this enactment does not extend to any will made before the first day of January, 1874 ; but every will re-executed or re-published, or revived by any codicil, is deemed to have been made at the time at which the same was so re-executed, re-published or jrevived (o). (a) Attestation. The witnesses need not sign their names in full ; it is sufficient if they write their initials or a description, or make their mark (p) ; but a seal is insufficient {q). And they must sign their own names. So, where one of the witnesses signed his name, and the other signed her husband's name at the request of the deceased, the husband (m) Crawford v. Curragh, 15 C. P. 55 ; Little v. Aikman, 28 U. 0. R. 343. But see Ryan v. Devereux, 26 U. C. R. 107. (n) R. S. O. cap. 109, sec. 12. (o) R. S. O. cap. 109, sec. 7. (1>) Theob. Wills, 28. (q) Ihid. Ili' ?»B?* ATTESTATION OF WILLS. 307 U. C. R. 343. not being present and being unable to write, the will was held to be insufficiently attested (r). They must sign in the presence of the testator ; but it is sufficient if they sign under such circumstances that the testator might have seen them if he had chosen to look, though he may not in fact have seen them sign (s). But where a testatrix signed in the presence of two witnesses, who twenty minutes afterwards put their names to the paper in an adjoining room, the door of which was open, but in such a position that they were out of sight of the testatrix, and she was not conscious that they were signing the paper, it was held that the attestation was insufficient {t). But where there is an attestation clause stating that the witnesses have signed in presence of the testator there is a strong presumption in favour of the regularity of the attestation and due execution of the will ; and even where one of the witnesses in such a case swore that the attesta- tion had taken place in an attorney's office, and not in the house of the testator where the will had been signed, the Court declined to act upon his recollection, and decreed piuuate of the will as duly executed (it). So, where the witnesses acknowledged their signatures, but had^no recol- lection of having signed the paper, nor of ever having seen it before, the attestation was held to be sufficient, on V^e principle that all things are presumed to be rightly done, unless there is reasonable ground shown for doubting it {V). The witnesses must sign with the intention of subscrib- their signatures need not be in any ing to the execution (r) In bonis Levcrinqton, 11 P. D. 80. • (s) Scott V. Scott, 13 Ont. R. 5.51, («) Jenner v. Finch, 5 P. D. 106. (u) Wright v. Rogers, 1 P. A M. 678. See also Wright v, Sanderson, 9 D. 149. (v) Woodhouse v. Balfour, 13 P. D. 2. "•^■■w 'i I 308 TITLE BY INHERITANCE, SUCCESSION, DEVISE. particular part of the will, but will suffice wherever placed if intended to attest the operative sif,mature of the testa- tor (w). Where a will was written on one page of foolscap at the end of wh'ch the deceased's signature ap]Deared with the words " witness William Hatton," and the naines of three other persons appeared under a memorandum not testamentary at the top of the second page of the sheet, the Court came to the conclusion that the three names were not signed vrith the intention of attesting the will (x). So, where a will was written on ten sheets of paper, the first nine being initialled by the deceased whose signature appeared at the end of the tenth, it was held that the signatures of two out of three witnesses on the first nine pages, and that of the third on the tenth, did not amount to a proper attestation (y). But where the witness signed opposite several alterations in the will, but not under- neath the attestation clause, the attestation was held to be sufficient, the Court being convinced that the intention was to attest the execution of the will (5^). And where a will was written across the second and third pages of a sheet of note paper, and the attestation clause and the signatures of the testator and witnesses were writhen on the back of the paper, the will having been written by the testator in the presence of the witnesses immediately before execution, it was held that it was properly executed (a). But the attestation, if not on the same sheet of paper as the signa- ture of the testator, must be on a paper physically connected with that on which the testator's signature {w) Phipps V. Hale, 3 P. & M. 168. (x) In bonis WiUon, 1 P. dt M. 269. M. 104. See also In bonis Dilkes, 3 P. & (y) Phipps V. Hale, 3 P. & M. 166. See also In bonis Dilkes, 3 P. & M. 164 ; In bonis Anstee, L. R. 1893, P. 283. (?) In bonis Streatley, L. R. 1891, P. 172. (a) In bonis Archer, 2 P. & M. 252. See also In bonis Hors/ord, 3 P. Si M. 211. A'H'ESTATIOX OF WILLS. 309 appears (h). So, where a will was written on the first page of a sheet of foolscap, and a codicil was written on the third pa<.,'e, but on account of the attestation clause reach insf to the foot of the pathe word " witness," it was held tha*^^ the codicil was well attested {c). And when slieets of paper are found fastened together it is presumed that they were so fastened together when executed, unless there is evidence to the contrary (d ]. A separate paper may, however, be incorporated with the will by reference (). Hut where a testator asked one person to attend and witness his will, and another to attend and witni'ss a ]wi)er; and at the time and i)lace appointed produced a jiaper so folded that no writing; could be seen, and explained that in conse(|uenco of his wife's death it was necessarv to make a chano-e in liis att'airs, and asked them to siy;n. which they did, it was held that the will was well executed, though he did not sign in their presence, nor did they ste his signa- ture (c). (c) M'lsfdbi iK'oax. By the Wills Act it is also declaref others was doubtful (o). The fact that her husband was in possession of ])roperty belonjjinrj to a married woman before the Act of IN.jJJ took effect wa 4 lield to be no obstacle to her right to devise it under this Act (p). By the Wills Act of 1873 (q) " person " and " testator " included a married woman, and consecjuently the powers of a married w^oman to devise her land have since that Act (m) C. S. U, C. cap. 73, sec. 10. (n) Mitchell v. Weir, 19 Gr. 5f)8. (o) Munro v. Stmrt. 20 Gr. 37. Cf. lie Ontario L. d- S. Co. iC- Powers, 12 Ont. K. o82, and cases tliere cited. (ju) Re Hilliker, 3 Ch. Ch. 72, (q) R. S. O. cap. 100, sec. 'J, sub-sec. 4. 316 TITLE BY INHEllITANTJE, SUCCESSION, DEVISE. '': been unrestricted. This clause has been omitted from the re vision of LS(S7, but the law no doubt remains the same (/■). The disability of coverture lias thus been removed ; but the disability of infancy remains. Conse- quently a married woman under twenty-one cannot make a valid will {-i). (iv) Rcfjistrcdion. By The Rff/isfrj/ Art, 1H93 (i), a will must be regis- tered within twelve months next after the death of the testator, unless the devisee or person interested in the lands devised is disabled from registering it by reason of the contesting of the will or other inevitable difficulty without his or her wilful neglect or default ; and if so disabled then within twelve months after the removal of the impediment. Infancy is not an inevitable difficulty within the mean- ing of this Act (u) ; and the conveyance by the heir at-law to a purchaser for valuable consideration (v), without notice of the will and registered before it, took priority over the will if it was not registered v.'ithin the prescribed time (w). Since the Devolution of Estates Act, and the Amending Acts of 1891 and l'S93, a similar rule will apply according to circumstances, after the shifting of the estate for want of a caution. It has also been held that destruction of a will about eleven months after the testator's death by his widow, who (r) The omission was probably a mistake, as the Ti-ustees and Exe- cutors Act, R. S. O. cap. 110, sec. 1, gives "person" and "testator'" the meaning assigned to them by the Wills Act. («) lie Murray Canal, C Ont. R. 685. (0 Sec. 86. («) McLeod V. Truax, 5 O. S. 455. (r) Bondy v. Fox, 29 U. C. R, 64 ; Doe d. Ellis v. McGill, 8 U. C. R. 224. (w) Mandeville v, Nicholl, 16 U. C. R. 609 ; Stephen v. Simpson, 12 Gr. 493 ; 15 Gr. 594. REGISTRATION OF WILLS. 317 burned the will so .is to enable her to raise money on tlu' land, was not an inevitable difficulty within the meaning of the Act, though, if it had been destroyed innnediately after his death, it might have been. Proudfoot, V.-C, said, " To render a difficulty of that kind inevitable, it would need to be one extending over the whole period of twelve months named in the statute. . . . Had the will in this case been concealed, or suppressed, or destroyed immediately upon the testator's death, it is quite possible that the devisee would be unaffected by the failure to register " (x). When the copy of a will, or of letters probate, or lettc ^ of administration has at .ached to it, when presented toi- registration, an affidavit or declaration by the executor or administrator that after the making of the will the testator parted with lands in the will described by local descrijjtion, and that it was not intended or desired that the registra- tion of tiie w^ill should affect such lands, and if it appears i)y the registered entries respecting such lands that the testator had parted with all his interest in or title to such lands, the Registrar sliall not register, copy or enter the will as an instrument atiecting such lands (i/). (.r) He Davis, 27 Gv. 203. (//) The Ki:- Art, LSUl, hoc. 70, sub-sec. 2. 318 CONVEYANCES HY MARRIED WOMEN'. CHAPTER XIII. CONVEYANCES RY MARRIED \VOMEN'. 1. Defect iiw ccrtijicatef^. 2. Joinder of the hitshand. ■). Statutory sepanUe entate. -1-. Tevnncy hy entireties. h. Surivniary. 1. D"fecJive rertijicotes: Before the 20th March, 1873, a married woman could not make a valid conveyance of her land unless she was examined before a Judge, two Magistrates or a Notaiy Public a.s to her consent to convey without any coercion on the pan: of her husband (z). A certificate of the examinauon and her willingness to convey was reijuired to be endorsed upon the conveyance; and so strict were the reciuireiiKuits of the law that an inforniulity or iiTegularity in carrying them out rendered the whole conveyance void. From time; to time various statutes were ])assed respecting the conveyance of land by married women {(i), but the necessity for their separate examin.ation remained until the 29th March, 1(S73, when an Act was passed declaring that every convevance theretofore executed by a married woEMi.n of or affecting her real estate, in which her husband {:> This remark does not apply to separate estate, which is dealt witl) liereafter. (a) See them collected in Elliott v. Drown, 2 Ont. R. 350. DEFECTIVE CEllTIFICATES. 319 had joined, should be taken and adjudged to be valid and effectual to have passed the estate of the married woman professed to be passed by the conveyance, notwithstanding the want of a certificate, and notwithstanding any irregu- larity, informality, or defect in the certificate, and notwith- standing that such conveyance might not have been executed, acknowledged or certified as required by any Act then or theretofore in force (h). The result of this Act was to make valid all convey- ances by married women which before the Act were void for want of the proper certificates or for any informality therein, except in certain cases. The exceptions are con- ta l in the fifth section of the revised Act, and may be stat'-'d as follows : — 1. When a valid deed has been made by the married woman after the void conveyance and before the 29th March, 1878. In this case the void deed is not cured unless the grantee in the void deed or some one claiming under him liad been in the actual possession or enjoyment "f the land continuously for three years subse- quent to the deed and before 20th March, 1873, and was on that date in the actual possession (^r iMijoyment thereof. 2. When the void deed was not executed in good faith. 3. When the married woman, or those claiming under her, was or were in the actual possession or enjoyment of the land contrary to the terms of the conveyance on 29th March, 1873. With r ^pect to the seconl observe 3 time of he finds as void. Uliott V. "actual of such the oast terl l)y a the con- )ssessioii were to lan fifty to them .1 on the een, and ons into m ; and ad been 3 on the lisputed s Bench the pos- e chiim- leration n which guished ion was Id that of the iient to unfor- y grave responsibility of adjudicating upon evidence of enjoyment which must ever be of a most unsatisfactory nature while the statute is satisfied by anything short of that open, visible and notorious possession, or enjoyment etiuivalent thereto, which amounts to exclusion of any other claimant. It is quite possible for acts of ownership to be openly exercised by both parties, neither being able to exclude the other, and each asserting a right to the enjoyment of the land ; and in a conflict between the gi-antee under a void conveyance and the married woman, if the acts of owner- ship by the latter are to be referred to a rightful title and to be considered as contrary to the terms of the void c(m- veyance, the statute will not opomte to validate the conveyance though the enjoyment by the married woman has not been greater in degree than that of the grantee. In cases within the first exception the Legislature recognizes the fact that the grantee in a subsequent valid conveyance is in constructive possession of the land under his legal title ; and in order to validate the prior defective conveyance there nmst have been actual continuous pos- session or enjoyment for three years immediately \>vior to the passing of the Act. In cases within the third excep- tion, the Legislature does not regard the marrietl woman as in such constructive possession that there must have been actual po.ssession in her grantee to avoid her title, but recjuires of the married woman or those claiming under her actual possession or enjoyment as against the grantee. Thus the symmetry of the Act requires, and the inten- tion of the. Legislature appears to be, that the gi'antee under the defective conveyance should be considered as .so constructively in possession that actual posse.'^sion, or its equivalent in actual enjoyment, is re(|uired to oust him. If that be so, then the actual possession or enjoyment under the third exception must necessarily be the same kind of posses- sion or enjoyment as is required under the first exception. TITLES— 21 322 CONVEYANCES BY MARRIED WOMEN. i ^ I ■ ( ' 'C -■;,■•/ I It is true that the first exception speaks of continuous possession or enjoyment ; but this refers to the time rather than to the mode of enjoyment. The three years must liavo been three consecutive 3'ears preceding the Act. In the third exception the married woman might have enjoyed the hind at different times before the Act, but the strict reading does not retjuire more of her than that she sliould have been in actual possession or enjoyment at the time of the passing of the Act. To permit any single act of enjoy- ment previous to the Act to be constructively extended to the time of the passing of the Act seems to be strangely at variance with its declaration that there must have been actual and not constructive possession, or actual and not constructive enjoyment, on the day on which it came into force. This leads to another consideration at variance with the principle of Elliott v. liroivn. 'Vha statute provides two alternatives, actual possession or actual enjoyment. If it is necessary in any case to establish actual possession by the married woman it will not suffice to prove construc- tive posses.sion. Hence, when the married woman, or any one claiming under her, i-elies upon actual possession, it will not be sufficient to establish in evidence isolated acts of ownership, even though they are contrary to the terms of the deed. Because such acts of ownership may be exercised concurrently with similar acts of ownership by the grantee ; and in such a case slie is not in actual posses- sion unless each individual act of ownership is construc- tively extended beyond its actual duration in order to make her successive possessory acts equivalent to actual possession. If successive isolated possessory acts are equivalent to ouster of her grantee, then similar acts on the part of the grantee must in turn amount to ouster of the married woman ; and unless she has at the time of the passing of the Act physical possession of the land she DEFECTIVE CERTIFICATES. 323 cannot, where such a state of facts occurs, be deemed to be in possession within the meaning of the Act. To say that she is constructively in possession by virtue of her paper title, and that isolated acts of ownership may be so constructively extended, is a(]fainst the spirit of the Act which retrospectively declares the void deed to have panfied the estate to her grantee, regards the grantee, therefore, as having been in constructive possession, and requires actual possession, which must mean exclusive possession amount- ing to ouster of her grantee, in order to prevent the operation of her deed. This is strikingly in contrast with the first exception in the statute, where the void deed and a subsequent valid deed are in competition, the grantee in the void deed being required to establish three years' actual possession as against the constructive possession of the grantee claiming under the valid deed. Where the conflict is between the grantee and the married woman, possession need not have been taken by the grantee at all, but actual possession must have been had by the married woman at the time the Act was passed. If we admit any possessory acts short of continuous possession by the married woman to satisfy the statute, simply because they are contrary to the terms of her deed, then the principle being admitted, the evidence tends only to show the degree in whicli ownership has been exercised. And it will suffice upon this reasoning to show one individual act of ownership contrary to the terms of her deed, which being constructively extended bftyc»nd its actual duration puts the married woman constructively in pos.session at the time of the passing of the Act and so prevents its operation. This, it is submitted, was not the intention of the Legisla- ture when it expressly provided for actual possession by the married woman or those claiming under her at the date of its enactment. It is therefore submitted that if actual possession is relied upon it must be that continuous, SIH 324 CONVEYANCES BY MAllUIED WOMEN. physical, open and notorious possession which amounts to ouster of the person claiminj^ under the defective con- veyance. But the statute provides another alternative. Actual enjoyment of the land by the married woman at the date of the passing of the Act will be sufficient to prevent its opbr^Hon. This actual enjoyment must be the eciuivalent of actual possession. The assumption that any enjoyment less than the equivalent of actual possession will suffice is illogical ; for actual possession is only a high degree of actual enjoyment, and the alternatives of the statute are upon this hypothesis a greater or less degree of enjoyment. If then any enjoyment of the land not equivalent to actual possession will satisfy the statute, it will alwaj's be .sufficient to give evidence of such enjoyment, and consequently it will never be necessary to give evidence of actual possession or its equivalent. In other words, it will never be necessary to give evidence of the greater degree of enjoyment, when evidence of a leas degree will suffice. Therefore, the provision of the statute that actual possession shall prevent its operation is entirely superfluous, and we must regard the legislature as having provided for a quantum of proof which was never intended to be given. Again, if the evidence of actual enjoyment amounts to what may be otherwise called constructive possession, then it is not sufficient, for the statute requires that if possession is relied upon, it must be actual possession. And if, when actual enjoyment is relied upon, a succession of isolated possessory acts is shown, the statute is still not satisfied because it requires a greater degree of possession, namely, actual possession, which, as we have seen, must mean phy- sical exclusive possession. It may be truly said that actual enjoyment must always be something less than actual possession ; and no doubt it \\ amounts jctive con- e. Actual it the (late prevent its etiuivalent enjoyment ill suffice is I degree of the statute cletjrree of land not he statute, 3e of such lecessary to ivalent. In evidence of dence of a sion of the iS operation legislature which was amounts to lession, then possession nd if, when of isolated lot satisfied on, namely, mean phy- nust always no doubt it JOIXDEU (»F THE Hl'SHANl;. 325 is difficult to say what actual enjoyment tiiere can he which would 1>e tlie ecjuivaient of, without heing in fact, actual possession. But it is not im})osMible to imagine such enjoyment. For instance, if a dam were built upon a stream below tlie land, so as to pen ])ack tiie water and cause it to overflow the land, there would be actual an), thou^^h for a time (from 2n), it was declared that every man icd woman of the full iv^v. of twenty -one years mi/^fht l>y dcrd alien her real »'state as fully and effectiuilly as she could do if she were a feme sole ; but no such eonveyiince was to he valid unless the husliand was a party to and executed the conveyance. Hy tile same Act (7), except where the Court of Chancery (now tiie Hi<^h Court (jf Justice) or any person intiMste) R. 8. O. 1H77, cap. 127, sec. 3. {q) R. S. O. 1877, lap 127, eec. 4. (;•) Ei' Nolcut,GF. R. 11,5. 328 roNVKVANTES 15V MAItllIKI> WOMKV. Master in ("hiiml)ers hud no juiisdif'tiMii. I'roNi.sion was al.se) ina' clause as to existiu'^ rights. It may be well to point out that the enactment reipiirin;; the joinder of the husband applied oidy to land which was not declared to be separate estate. The result of the repeal is to leave the bare enactment that a married woman of full a<^e may convey as fully and etf'ectually as x\f€)ne sole. No formal- ity will henceforth be repiired in her c»uiveyance which is not required in a conveyance by iifcnie sole. And the wife may, therefore, by her own sole conveyance, dispo.se of the fee simple absolute, subject to the possible estate by the curtesy of her husband, and that interest which she may so dispose of has been held to be separate estate (it). The husband's assent is no lonj^er necessary to give ettect to the wife's conveyance of her interest ; but to effectuate a com- plete disposition of the fee simple unincumbered, he must still join in order to convey his own interest, if any, as tenant by the curtesy. («) 61 Vict. cap. 21. {t) 47 Vict. cap. 11), Bee. 22, latter part. {(() Moore v, Jackson, 22 S. C. R. 210. .lOlXDKU OF THK HISMAXI). :i'2'.) (loll was ttMl ; Imt 1 (.'«■), juul till CJIHCH HK*e WHS eh ciiHes iscnuot- iisliajMl's jsy, iiixl ler (Avn iv of the ly, Ks>si, . may lie joinder leclared to leave v<(e may t'(jrmal- A'hich is the wife e of tlie hy the may so Tlie t to tlie a eom- 16 must any, as It was neeessaiy, as Wf hfive sfcn, that where the joiiuh'i' »(f the lnisl»aMr shall si;;n or execute, is and shall he taken and adjudi;ed to he valid ami effectual to have passed or to piss the estate wiiich such conveyance pr(»fessed or shall profess to pass of such married woman in said real estate. ' The object of this amenduKMit was probubly to validate those conveyances by married women in which theii' hus- bands had joined as assentint,^ but not as ;,n"antin;; parties. Hut it professes to make them ert'ectual only as re^'aids the estate of the married women . auS72, there was pas,sed The Married Women's P rope rf)/ A<-f, IS7 J,hy which it was enacted that after the passing of the Act the real estate of any nuirried woman, owned by her at the tiiiie of her marriage or ac(|uired daring coverture should, without prejudice, and sul)iect to the trust ? of anv settlvnnent atlecting the same, be held and enjoyed by her for ner sei)arate use, free from any estate ot' claim of her husliand during her lifetime or as tenant by the curtesy ((t). The construction of this Act came \ip in Farnes.^ v. M'lf- cliell (/>), where it was held that land coming within its operation wjis separate estate in the fullest sense of the term : and conse(iuently that there was attached to it the inseparable right of alienation without tlie husbantl's consent. ((/) As tlie frame of this aoctioii is similar to that wliicli ()ccasioneman took it as separate estate, and had therefore the power of conveying" it as a /one sole. The' law remained thus until the comiui^ into force of the Revised Statutes. J)urinj; this period there was in force the Act i-espectini( the con- veyance of land by married women («'i, which was amended in LS?.*] (d), and by these Acts it was declared that the joinder of the husband was neceswiuy in oidei- that the mar-ried woman miirl.t make a valid conve\ance. But the opini). Hence we may conclude that property the title to which accrued ((/) to a married woman on or after 1st July, 1. 177. I N i 336 CONVEYANCES BY MARRIED WOMEN. assurance, and she would the l»y become a trustee for her husband (/•). As to property not decUired to be separate estate, it has been sliewn that the wife may convey her own interest, wiiich of itself is separate estate, but the husband must still join to convey his own interest (s). And where a woman was married and ac(|uired a vested remainder in fee simple, expectant on a life estate before 1.S72, and had issue born alive capable of inheritinjj, it was held that her sole conveyance of the remainder, the life tenant being still alive in ISSO, was valid to pass the reiiiiunder. The Act of ItScSl dispensed with the husband's concurrence in the conve^'ance of her interest, and as she was not seised of the estate the husband had no estate by curtesy (0- 4. Teanney b)j entlretiei*. The Married .Vomen's Property Acts have been said to affect the estate bv entireties to the extent that the wife may hold and dispose of her interest in the land separate and apart from her husband ; in short, they have been said to make her interest separate estate. With r^reat respect for the decisions on the point, it seems to the author that this estate, on account of its peculiar characteristics, ought not to be affected by this legislation. Inasmuch as the husbaml and wife were each incapable of conveying without the other, to hold that the wife is by these statutes enabled to convey her interest separate from the husband, is either to leave the husband still incapable of conveying his estate without the wife's (;•) Sanders v. Muhl)Hr(j, 1 Ont. R. 178. See also Kent v. Kent, 20 Ont. R. 445 ; 19 App. R. 3V)2 ; Whitehead v. Whitehead. 14 Ont. U. (i'il ; Jones V. Magrath, 15 Ont. R. Ib9. (s) Ante, p. 328. (t) Re Gracey tO Tor. li. E. Co., IG Ont. R. 226. TENANCY HY ENTIRETIES. '.r.\- as8ent (a highly anomalous position, and a result eviilciitly never contemplated) (it), or to induce a holdini^ that as the wife's estate is separate from the huH])an(rs, so the hus- band's must as a conseciuenco be separate from the wife's, a result not authorized by these or any other statutes. If the true ett'ect of the Married Women's Property Acts were to make the husband and wife separate individuals For all purp(wes, it mi<^ht be held, as a consucjuence, that, as the fovuidation of the estate, the unity of husband and wife, was destroye. '222 ; 27 Cli. D. 1(11 ; ^j- Jm>, a|) C^ll V M^* ; Butler V. IJutlei; 14 Q. B. D. HM. (w) Per Armour, J., in Griifui v. Patterson, iS tl. C. i{. at p. ')54. {x) Re WihoH cC' Tor. Inc. El. Co., 20 Ont. R. 3i»7. (//) Cooper V. Macihmald, 1 Vh. D. 28S ; Hope v. Hope, L. R. (18'J2) 2 Ch. 330. See also Re Lambert's Estate, 3'J Cli. D. (520. TITLE.S— 22 ni\H roNVKVANt'KS IIY MMMUKD WOMKV, dl Mnj^lish oiiMc {:). In Mic piTHPni hIjiIo of (li»' milliorilirs. llHMcfoio. a fonvt<\}iii(M> of ImikI (n IiumIwiikI mul wilr imikcs tlitMi) joint (tMiiiiils, Miitl Mit< wil'o may r*>sl, ill iho \tu\i\ MS ln<'t, «l(>«MNioii upon the linht ,»!' (||«< litisltaml willi r(<;,niiul the wil'c may convey her i>sta.te alone. 'J. Prop(>ity ae(piin>(l tlurinn' the perioil I'lom I'ml INIareh, IST"J. to .'lOth I >t>eemliei', !S77. hoth ineliisi\(». hy a woman iuariii>(l at any time hel'ore .'list Decemher, I.s77. heeame separate estat«\ an;hts. and his con ^Mii'rence was necessary in her conveyance l»el"ore 1st. .Inly. JNiSj.. Since that date he must. Join to convey his own interest, li\it his wife ma\' convi>v her estate alone. 4. Property acipiired while the H«>vi,sed Statnt*', 1H77, wa.s in force hy a woman marrieil after 'ind March, IS72, hoonme separate estati*, and tlu' hushand's c«>neunvnce was novor necessarv a T). Pn)perty acniiire;! on or after Ist .Inly, 1.SS4, hy woman nuirriiMJ at any time, and property owned at the time of her niarria>re by a woman married on or aft«M' 1st July, 1SS4, is sepaiate estate, and tiio Imslumd'a concur- rence is unnecosaary. (r) Thornley v. Thornlfy, L. R. (1893) 2 Cli. -i'iiK .11 I mi A I, SAMX :\X) CIIAI'I'KI? \IV. .H IH< I \i, ihlkh. 1. J Kil ii'iiil s)i/rn. 2. \'rsf I III/ iinlrrn. 'A. t^ilirs niiilri'r.iii'iifinii. t . J iiiirrluiHrr luiyM midi r n (Ircn'c «»r jinl^^iiM-iit. u\' tln> ( 'ii mIuiII not, ns ii^oiinst a purcliascr, wlietluM' with or witlutnt notice, Iju invali-et a li'ood title, all claims of the per.son.s interested in tiie estate lieiny; transferred to the purchase money " (e). So, it has been held, in the ca.se last cited, that an administra- tion order for sale bound incumbrancer.s who were not parties to tlie proceeding and did not concur in the con- veyance, and precluded them from objectin<; to the order, thus securin*; the purcha.ser in his title under the order. But in a recent case in Ontario ( /) it was held that dow- 376. {(i) lie Hull Dare's Contract, 21 Ch. D. 41. (e) Ibid, at p. 49; followed in Mogtij.\ v. Mostyn, L, R. (1893) 3 Ch. (f) Re Ilewhh, 17 Ont. R. 454. JUDICIAL SAI.KS. 841 1 n.)t, as notice, V)e ion, or of ICO. t inelu»li'«l on applit's conu'ut of •etho coiii- lintMl to l>o iccniont ol ,ei'nunetl to lu! ("ourt or jurisdic'tioii i«le 1)y th«- ; Itvit once )i' protected face tluii or>;e .]essel, which has ihle himself till he is to csted in the y " (e). So, adniinistra- o were not in the con- ;o the order, the order, d that dow- (1893) 3 Ch. resses who were not parties to a partition proceeding under which the land was sold ictained their i'ii;lit to dowel* in till! hmd as against the j»urchasi -; This decision seems to he incon>ist('nt with tlie Kn;;li.>sh inti'rj)n'tation of the clause in ([uestion. It will conseipiently Im- uimecrssary for a purchaser to iiniuirc as to the constitution of tin? action or suit, the parties, or tlie proceedings wlii(di le %. 2J WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^0 W^ W m^.r & 1 6^ ^ ^ 342 JUDICIAL TITLES. In Richer v. Richer (i) the right of a mortgagee, who was also devisee of the land in trust to pay legacies, to bid under an order allowing him to do so was limited by the Court of Appeal to protecting himself as mortgagee, and it was said that " a stranger might do what he owed as a matter of duty to th:*s defendant not to do." But it is doubtful whether since Coaks v. Bosivell was decided this can be treated as truly stating such a purchaser's position {j). In Richer v. Richer there were circumstances which induced the belief that a fraud had been practised, and the case may well be supported on that ground. Biit a purchaser from such a purchaser would be protected, if he had no notice, as appears by the same case. It has been held that a party purchasing under a decree is bound to see that the sale is made in conformity with the terms of the decree; and where the purchase has been made cont/ary to the authority of the decree the purchaser cannot afterwards conform to its terms so as to take the benefit of it (/.'). The question whether or not a sale has been made according to the terms of an order or decree does not touch the validity of the order or decree itself, but arises after it has been made, and consequently it is not affected by the enactment in question ; and it may still be incumbent upon the purchaser to see that the sale has been properly conducted according to the judgment or order of sale. The wording of the Act, however, is broad enough to cover any order, and the granting of a vesting order thereafter might cure an irregularity in the sale proceedings. 2. Vesting Orders. "In every case in which the Court has authority to order the execution of a deed, conveyance, transfer or ()■) 7 App. R. 282. (j) And see Mitchell v. Mitchell, 6 P. R. 232. (k) Colclowjh V. Stenim, 'i Bligh, 186, VESTING ORDERS. 343 awsignnient of any property, real or personal, the Court may by order vest such real or personal estate in such person or persons, and in such manner, and for such estates as would be done by any such deed, conveyance, assignment or trans- fer if executed ; and thereupon the order shall have ihi same effect 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 (Z). This enact- ment applies to etjuitable as well as legal estates" (m). A purchaser is not bound to accept a vesting order, but is entitled to a conveyance with the usual covenants in) ; but if he elects to take a vesting order he should be extremely cautious in accepting the title, as, having no covenants in that case, he is without recourse against the vendor (o). Where a purchaser was asked to take a vesting order he was always entitled to evidence that the persons whose interests were intended to be vested were alive at the time the order was made {p). But inasmuch as the Court has ncv/ power to force a purchaser to accept a title under a defective order when there is jurisdiction to make the order, it may well be that a vesting order will r. jfficiently protect a purchaser in every case. Where a vesting order appears as a link in tiie chain of title it is presumed to be regular unless the purchaser impeaches it (g). {I) K. S. O. cap. 14, sec. 31. {m) Re Robertson, 22 Gr. 449. (n) Laplante v. Seamen, 8 App. R. 557. (o) Kincaid v. Kincaid, G P. R. 93. (p) Slater v. Fisken, 1 Ch, Ch. 1. (i) Henderson v. Spencer, 8 P. R. 402 ; Re Morse, 8 P. K. 475. 344 JUDICIAL TITLES. By The Conveijaaoing and Law of Pi'opertf/ Act, J8Sf) (r), where land subject to an incumbrance, whetlier immediately payable or not, is sold either by the Court or out of Court, the Court may allow payment into Court of such amount as when invested in approved securities \\\\\ be sufficient to keep down or otherwise provide for any charge thereon, or to meet the incumbrance and any interest thereon ; and it may also require such additional amount to be paid in as will be sufficient to meet future contingencies, except depreciation of investments, not exceeding one-tenth of the original amount to be paid in, unless for special reasons a larger amount is required. And thereupon the Court may, either after or without notice to the incumbrancer, declare the land to be freed from the incumbrance, and may make an order for convey- ance or a vesting order to give effect to the sale. The money remains in Court to be disposed of amongst the parties entitled thereto. The Act is permissive, and the Court has refused, on the application of a purchaser, to compel the vendor to pay a sufficient amount into Court to procure the discharge of a rent-charge, where the amount would have exceeded the amount of the purchase money, and where there was a stipulation in the contract entitling the vendor to rescind if the purchaser insisted upon any objection which the vendor was unable or unwilling to remove (s). Advantage was taken of the Act, however, in a case where a mortgage was in question, by ordering payment into Court of enough to cover the principal and interest together with ten per cent, extra, and vesting the mortgaged property in the purchaser freed from the mortgage, leaving the question of its validity to be disposed of afterwards between the parties immediately interested {t). (') 49 Vict. cap. 20, sec. 12; now R. S. O. cap. 100, sec. 15. (s) lie G. N. R. Co. <£• Sanderson, 25 Cli. D. 788. {t) Milford Haven R. <& E. Co. v. Mowatt, 28 Ch. D. 402. SALES UNDER EXECUTION, 345 'ty Act, whetlier Dourt or Court of ties will for any md any Iditional t future iits, not paid in, equired. without 36 freed convey- e. The igst the used, on ndor to ischarge xceeded '0 was a rescind ich the v'antage ortgage enough ten per in the stion of sen the .S. Sales under execution (u). Under a writ of fieri facias against lands the sheriff might formerly have sold an inchoate right to dower (?"), but by a recent Act this interest is not exigible (iv). Since the passing of the Act, 40 Vict. cap. S, sec. 37. a widow's right to dower after the husband's death and before assign- ment may be seized and sold {x), though before that enact- ment it was held that it was not assignable, and so not exigible. The sheriff may also sell a tenancy by the curtesy initiate or consummate (y), a reversion (r), and a vested remainder (a). Before the Act, 14 & 15 Vict. cap. 7, a right of entry was not saleable under execution ; for the owner coukl not himself convey his interest, and therefore the sheriff could not sell it. But by the Act respecting the transfer of real property (/;) a contingent, an executory and a future in- terest, and a possibility coupled with an interest in any land, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent, into or upon any land, may be disposed of by deed ; but no such disposition shall by force only of the Act defeat or enlarge an estate tail. And by the exe- cution Act (c) any estate, right, title or interest in lands (u) See ante, p. 154, et seq. {v) Miller v. Wiley, 16 C. P. 529 ; 17 C. P. 368. (ir) R. S. O. cap. 6-1, sec. 25, sub-sec. 2. (.r) Allen v. Edinburgh Life Assurance Co., 25 Gr. 306. Hutchison, 12 App. R. 110. {if) Leith R. P. Stat. 69, 70, 71, 273, 315. (z) Doe d. Cameron v. Robinson, 7 U. C. R. 335. (a) Lundy v. Maloney, 11 C. P. 143. (?) R. S. O. cap. 100, sec. 9. (c) R. S. O. cap. 64. sec. 25. See Douglas 846 JUDICIAL TITLES. which under the foregoing Act may be conveyed or assigned by any party, or over which such party has any disposing power which he may without the assent of any other person exercise for his own benefit, shall be liable to seizure and sale under execution against such party, in like manner and on like conditions as lands are by law liable to seizure and sale under execution ; and the sheriflf selling the same may convey and assign the same to the purc';aser in the same manner and with the same efiect as the party himself might have done ((/). But a right or option to purchase contained in a lease which was sold ujider an execution was held not to pass to the purchaser (e) ; nor is a vendor's interest after he has made a contract for sale exigible under a writ against lands (/). And a mortgagee's right to redeem his mortgage after he has pledged it cannot be so sold (g). A purchaser's interest in land before pay nent of pur- chase money and conveyance, being a mere e piitable right to enforce the contract (A), is not saleable under exe- cution (i) ; but this decision has not been followed (j). Where a husband and wife take jointly, it has been held that an execution against the husband will not bind his interest in the land, because they take by entireties, and his estate is not alienable without his wife's con- sent (k). But in that case it was doubted in the dissenting judgment whether a married woman wdio can acquire statutory separate estate does not in such a case take the [d) See Leitli R, P. Stat. 65 et seq. and 316 on these statutes. (e) Henrihan v. Gallagher, 2 E. & A. 338. (/) Parhe v. Riley, 12 Gr. 69 ; 3 E. & A. 215, {()) Rumohr v. Marx, 3 Ont. R. 167. (//) Re Flatt d> Pre^cott, 18 App. R. 1. (/) Re Prittie d; Crawford, 9 Gcc. N. 45. (j) Ward V. Archer, 11 Occ. N. 169. Sed quare. (k) Griffin v. Pattcrxon, 45 U. C. R. 536. m SALES UNDER EXECUTION. 347 7ey ' has any it of any liable to party, in 3 by law le sheriff le to the effect as n a lease pass to r he has against nortgaga of pur- )le right lor exe- (i). las been lot bind itireties, :e's con- ssenting acquire bake the es. estate or interest as a feme sole, and this view now pre- vails (I). Anc. it may be that the interest of the husband i^ also alienable at his pleasure and subject to execution. Free grant land during location, and after the issue of the patent for twenty years from the date of location, where the same is owned by the locatee, or his widow, heirs, or devisees, is not liable to execution (r/i); but where a locatee sold his land and took back mortgages for purchase money, it was held that the mortgages were not protected by the Act, but wero liable to execution (n). The cases in which an equity of redemption is bound by execution and consequently may be sold have been before treated of (o). The effect of a sale of such an interest is declared by the statute {p) to be to vest in the purchaser, his heirs and assigns, all the legal and equitable interest of the mortgagor in the mortgaged lands at the time the writ was placed in the sheriff's hands, as well as at the time of the sale, and to vest the same rights as the mortgagor would have had if the sale had not taken place, and the purchaser may pay and discharge any mortgage, charge or lien which at the time of the sale existed upon the lands in like manner as the mortgagor might have done, where- upon he acquires the same estate, right and title as the mortgagor would ha\e accjuired. And it is further declared (q) that axiy mortgagee of the lands ('being or not being plaintiff or defendant in the judgment whereon the writ issued under which the sale took place) may be the purchaser, and shall acquire the same estate as any other (I) See ante, p. 33G. (m; R. S. O. cap. 25, sec. 20. [n) Gann v. Knott, 19 Or-.t. R. 422 ; 20 Out. R. 294. (o) Ante, p. 157, et seq. (X)) R. S. O. cap. 64, sec. 23. (q) Sec. 21. ■q 348 JUDICIAL TITLES. purchaser; but in the event of his becoming a purchaser he must f^ive to the mortgagor a release of the mortgage debt. And if any other person becomes the purchaser, ;iiid the mortgagee enforces payment of the mortgage debt against tiie mortgagor the purchaser must repay him, and on default of payment for one month after demand the mortgagor may recover the amount from the purchaser in an action of debt ; and until the deb' and interest have been repaid the mortgagor has a charge therefor upon the land. It has been held that the effect of a purchase by a mortgagee under this statute is to satisfy the mortgage, the mortgagee being deemed to bid the amount of the mortgage and also the actual sum bid over and above his mortgage. The exacting of a release is a mere consequence of the satisfaction of the mortgage (r). By the Rules of Court (s) it is provided that before a sale under a writ the sheriff' shall publish an advertisement of sale in the Gazette at least six times, specifying the particular property to be sold, giving some reasonably definite description of it, the names of the plaintiff" and defendant, and the time and place of the intended sale. He shall also for three months next preceding the sale also publish such advertisement in a public newspaper of the county In which the lands lie, or shall for three months put up and continue a notice of such sale in the office of the clerk of the peace, or on the door of the Court House, or place in which the Court of General Sessions of the Peace for such county is usually held. Errors and defects in the advertisement will not avoid the sale {t), even though the purchaser is one of the execu- tion creditors (u) ; nor is it an objection that the advertise- (r) Woodmffy. Mills, 20 U. C. R. 51. (s) Rules 906, 907. (t) Lee V. Howes, 30 U. C. R. 292. (m) Patterson v. Todd, 24 U. C. R. 296. il ! SALES UNDER EXECUTION. tUd chaser he '•d^e debt. ', and the t against , and on land the chaser in est have upon the ase by a lortgage, t of the bove his sequence before a bisement ring the isonably itiff and lie. He ale also r of the months !e of the ouse, or le Peace )t avoid ! execu- vertise- ment does not particularly define the estate or interest to bo sold {('). The purchaser will still take a title, though the sheriff may be Hal )ie to the execution creditor or the debtor if either has been injured {m). But if the irregularitit s are such as that the purchaser's taking the deed would aiuount to a fraud the sale cannot be maintained (.>■). Nor will irregularities in the proceedings before Judgment affect the title of a purchaser {>j). And though it is irregular to issue a writ aoainst lands until after the return of a writ against goods, a sale under such a writ will not be disturbed (z). Similarly, a writ issued forthwith upon a judgment signed "■ y default, a lapse of eight days oeing required by the rules of Court, is an irregularity only, and not a nullity (a). And ' it has been held that a sale of a whole farm for a debt which the sale of a portion would have satisfied will not avoid the sale {h). So long as there is a valid judgment subsisting and unsatisfied, it will support the execution and the execution will support the sale. There must, however, be a judgment for a valid debt unsatisfied (c), and a plea settino- up a writ without aver- ment of the judgment is bad ((/)• But a writ is sufficient evidence without proving the judgment as against one (r) McGce v. Kane, 14 Ont. R. 226. (xc) Osborne v. Kerr, 17 U. C. R. at p. 141. (x) McDonald v. Cameron, 13 Gr. 84. See general remarks in this case as to the duties of the sheriff. (y) Doe d. Boulton v, Ferguson, 5 IT. C. R. 515. (?) Doe d. Spa ford v. Broicn, 3 O. S. 90 ; Meyers v. Meyers, 9 U. C. R. 465 ; Ross v. Malone, 7 Ont. R. 397. See also Doe d. Tiffany v. Miller, 6 U. C. R. 435. Since this chapter was prepared for press an Act has been passed, 57 Vict. cap. 26, by force of which lands shall henceforth be included in the same writ with goods. (a) Macdonald v. Cromhie, 2 Ont. R. 243. (b) Doe d. Hagerman v. Strong, 4 U. C. R. 510. (c) Freed v. Orr, 6 App. R. 690. (d) McDonell v. McDonell, 9 U. C. R. 259. 350 JL'DICIAL TITLES. claiming under or in privi*^,y with the debtor (e). And where the judgment is afterwards reversed for error the defendant can recover the money only and not the land (/). The writ must be current when acted upon and regu- larly renewed, if the cirumstances recjuire it ((/), in order to support the sale {h), that is to say, something must be done by way of inception of execution during its currency, and the proceedings may then be carried to completion, although the writ has expired in the meantime (i). Going upon the land to demand payment and declaring that it will be sold if payment is not made is not an inception of the execu- tion (j). But it has been held that going to the debtor and obtaining from him a list of his lands owned by him and liable for sale under the wi it, and including in the list the land of the debtor upon which he was at the time of fur- nishing the list, was an inception of the execution {k). And now, by the Rules of Court {I), the advertisement in the Gazette during the currency of the writ is deemed to be a sufficient commencement of the execution to enable the same to be completed by a sale and conveyance of the lands after the writ has become returnable. It was formerly the law that a sheritt' who commenced to execute the writ could complete it by sale and conveyance, {e) Douglas v. Dnulfonl, 3 C. P. 439 ; Freed v. Orr, 6 App. R. at p. 701. (/) Doe d. Hagerman v. Strong, i U. C. R. 516 ; see also Freed v. Orr, 6 App. R. at pp. 694, 701. (g) Daby v. Gehl, 18 Ont. R. 132. (h) McDonnell v. McDonnell, 9 U. C. R. 2.59 ; Dne d. Greenahields v. Garrow, 5 U. C. R. 237 ; Doe d. Gardiner r. Jiison, 2 E. & A. 188. (i) Doe d. Tiffany v. Miller, 6 U. C. R. 431. ij) Bradburn v. Hall, 16 Gr. 518. ( k) Doe d. Tiffany v. Miller, 6 U. C. R. 426, and see S. C, 5 U. C- R. 79. {1} Rule 907. SALES UXDEll EXECUTION. 351 e). And error the not the nd recu- order to '• be done sncy, and although upon the 11 be sold le exeeu- btor and him and 3 list the 3 of fur- j). And t in the I to be a able the he lands imenced t^eyance, i. R. at p. ed V. Orr, .shields v. , 5 U. C- even if he had vacated office at the time of the sale {m). But by ihe Execution Act {ii), if the sheritt' went out of office during- the currency of any writ of execution against lands, and before the sale, such writ was to be executed and the sale and conveyance of the lands to be made by his successor in office. This section is not consolidated in the revision of 1887, but by the Interpretation Act, sec. 8. sub- section 27, " words directing or empowering a public officer or functionary to do any act or thing, or otherwise npply- in/). (t) Doe d. Spafford v. Brown, 3 O. S. 90. ((() Mitchell V. Greenwood, 3 C. P, 465. (V) U'alhrr v. Powers, E. & J. Dig. 1125. (w) Doe d. Armour v. McEwen, 3 O. S. 493. (x) Sec. 87. (y) Van Wagner v. Flndlay, 14 Gr. 53. Ml K)HM AND EFFECT OF THE I'OWER. 353 (.lelivert'il and sold Hah', and ! formal i- to which 38t alonu, r a writ id cannot that all 3gistured rvvise the eeniod to ' in ^ood istration at notice in time, CHAPTER XV. SAF-ES UXDEK I'OWEUS IN M» )I{TGA(iES. 1. Form (ind c^'cct of t/w pon'o', 2. Notice of sale. 3. Sale and conveyavce. 1. Form and effect of the power. Powers of sale in mort^^a^^es aj-e usually created 1»y conveying in fee to the mortj^jagee with a proviso for redemption, accompanied hy a declaration that if default is made in payment it shall be lawful for the morto-aoee, his heirs, executors, or administrators, or assinns, to sell after certain notice. A power may also be created by limiting the estate to the mortgagee for a term of years with a proviso for redemption, and subject thereto to the use of trustees in fee upon trust to sell ; or by limiting it to trustees in trust for sale if the money is not paid upon a certain day, ,vith a proviso for redemption. Attention will be more particularly directed to the first as it is the most usual mode in Ontario, and is that adopted in the Short Forms Act. The power is by the Short Forms Act reserved to the heirs of the mortgagee and not to the personal represen- tatives, as it should be. For the latter are entitled to the money ; and though the heirs formerly held the legal estate in trust for the parties entitled to the money, the personal representatives had, even before The Devolution of Estates TITLES — 23 354 SAl.ES UNDER POWERS IN MORTGAGES. Act, the risrht to discharge and assign tJie mortgage {z). And although by the amendments to the Act passed in 1891 and 1 893 the legal estate, in the absence of a caution, shifts to the person beneficially entitled, it is still wise to reserve the power of sale to the personal representatives. To avoid doubts which arise in consequence of these Acts, as well as for the reason already stated, it is strongly recom- mended that thb power should be reserved to the personal representatives of the mortgagee ; and that provision should be made for giving notice to the jjersonal I'epresen- tative of the mortgagor, or ^f no personal representative shall fee appointed within a reasonable time after the death of the mortgagor, then that the power should be exercis- able without notice. It is essential that some such liberty- should be given, as if the notice is to be given to the personal representative only, the power is inoperative until ^ne is appointed («). The Short Forms Act provides that the power may be 'exercised by the assigns of the mortgagee. It is most important that the short form should, if used, be strictly followed, so as to retain this right, or if another ^-^ -m is used, that the power should be extended to the assigns of the mortgagee, so that in case of an assignment of the mortgage there may be no doubt of the existence of the right in the assignee to exercise the power. For though the assignment of the mortgage may convey the land and the debt, it is doubtful whether it involves th? transfer of the power as an inseparable incident of the estate {h). Where there has been a trust for sals limited to trustees and the survivor and the heirs of the survivor, and no provision has been made for appointing nev;^ trustees, it has been argued that assigns cannot sell, because a personal (a) R. S. O. cap. 110, sec. 16. (a) Parkinton v. Hanbury, L. R. 2 H. L. at p. 18. (b) Re GilchrUt di Island, 11 Ont. R. 539. ' FORM AND EFFECT OF THE POWER. 355 gage (z). \ in lcS91 on, shifts reserve A'es. To ! Acts, as Y recom- personal provision I'epresen- sentative ihe death 1 exereis- h libert}' n to the iive until L' may be I is most 3 strictly c^- m IS issigns of t of the le of the r though land and ansfer of itate (6). trustees , and no ses, it has personal confidence has been reposed in the trustees. But the fallacy of this reasoning has been pointed out. For though there may be a personal confidence reposed in the trustees or in the survivor, it cannot be assumed that the author of the trust placed any personal confidence in the heir of the survivor ; for it could not be known beforehand which of the trustees would be the survivor or who wouU! be his heir (c). And it has also been pointed out that where heirs alone are named, if the trustee devised the estate to the person who is his heir the latter would, undei- the Wills Act, take as devisee and not as heir, and so being an assignee could not execute the trust which he would have been otherwise able to execute as heir (>/). Notwithstanding these objections, the authorities at pre- sent withhold the power from assigns if not named (e). A distinction must be drawn again between a trust and a naked power. Where power is given to divert an estate from a previous holder, he wdio holds the property subject to the power has a right to say that the po\ .r shall be exercised tnodo et forma (/). A mortgagee with power of sale does not occupy either of these positions : for he has a beneficial interest in the land and its proceeds, and he holds the power as incident to his security and to enable him to realize speedily thev'-on : and as Sir John Romilly, M.R., said, " it is mani- festly also a most inconvenient doctrine to hold that a (c) Titley v. WoUtenhohne, 7 Beav. at p. 434. (d) Macdonald v. Walker, 14 Beav. 562. (e) Bradford v. Belfield, 2 Sim. 64, following Tou-nsend v. Wilson, 1 B. & Aid. 608; Cooke v. Crawford, 13 Sim. 91, disapproved in Macdonald v. Wal!:er, mpra, said to be over-ruled in Osborne v. liowlett, 13 Ch. D. 774, but contra \n lie Horton db Hallett, 15 Ch. D. 143; Ridout v. Howland, 10 Gr. 547. See Leith R. P. Stat. p. 363 n. (/) Lane v. Dehenham, 11 Ha. at p. 192. 356 SALES UNDER POWERS IN MORTGAGES. R II" power is separated from, and is not incidental to and united with, the legal estate wli.''rever it may go " {;/). When the short form is used care must be taken not to omit from it, by way of qualification or exception, any term of the power. For it has been held that if the short form provides for a sale without notice, that is a deviation from the statutory form, and not an exception from nor a quali- fication of the form given, but an abolition of one of the conditions contemplated by the statute as giving the right to exercise the power. In such a case the words used in the instrument will not derive any aid from the long form, but will receive the bare construction whicn the words themselves will sustain. Hence the mortgagee being the only person named will be the only jDerson entitled to exercise the power (h). Where, however, the power provided for a sale upon notice on default being made for " one month " instead of two or more months, the word " months " being the word used in the form, it was held that this was not a material variation of the short form, and did not invalidate it as a form under the statute (i). And where the proviso was that on default for one day the mortgagee might sell without notice, the Court was divided. Rose, J., disagreeing with Re Gilchrist & Island, and being of opinion that it was a valid variation of the form, while Street, J., thought that it was an unauthorized variation, and that the words used derived no aid from the statute (j). Finally, in Barry v. Anderson (k), the Court of Appeal, Burton, J. A., dissenting, held that' a proviso that on default for one (g) Macdonald v. Walker, 14 Beav. 562. (h) Re GikJwiat d- Mand, 11 Ont. R. 537. (t) Ee Green dt Artkin, 14 Ont. R. 697. (;■) Clark v. Harvtij, 16 Ont. R. 169. {k) 18 App. R. 247. FORM AND EFFECT OF THE POWER. 357 [ to and :en not to , any term hort form ition from ^r a quali- one of the r the right ds used in Ions form, the words being the entitled to 1 sale upon instead of the word b a material idate it as a proviso was might sell disagreeing nion that it , J., thought at the words Finally, in Burton, JA., ault for one month the mortgagee might, on ten days' notice, sell, was a variation of the form within the statute. While opinion is so varied on such an important matter the necessity of adhering rigidly to the form cannot be too strongly insisted upon. When the mortgage deed contains a stipulation that tlie purchaser under the power shall not be bound to inquire whether notice has been given or default made, or other- wise as to the validity of the sale, but that any sale by the mortgagee shall be valid as regards the purchaser at all events, and that the mortgagor's recourse shall be against the mortgagee only for damages, a bona fide purchaser will take a good title on a sale provided that he has no notice of irregularities. But such a clause will not protect a purchaser who has notice of an irregularity (l). When the power of sale is exercisable only upon notice, and the right to sell does not therefore arise until notice has been given, it has been suggested that an attempt to sell without notice is not in fact a sale, and the party offering to buy is not a purchaser and cannot therefore claim protection under this proviso (r/i). And it is clear that if a purchaser discovers that the event has not happened upon w^hich the mortgagee may sell he may rescind his contract to pur- chase (n). And if the mortgagor has created a second mortgage he cannot thereafter as against the subsequent incumbrancer waive the irregularity (o). But in one case where there was a proviso that upon any sale iJiirportiiig to be made in pursuance of the power, the purchaser should not be bound to inquire whether default had been made, or as to the propriety or expediency of the sale, and [I) Parkinson v. Hanbunj, 2 D. J. & S. at p. 452 ; Selwyn v. Garfit, 38 Ch. D. 273. {in} Ford v. Heely, 3 Jur. N. S. 1116. («) Forster v. Hoggart, 15 Q. B. 155. (o) Ibid.; Selwi/n v. Garjit, 38 Ch. D. 273. iHHIB ■ 358 SALES UNDER POWERS IN MORTGAGES. tliat notwithstanding any impropriety or irres^ularity in any such sale, the same should, as regarded the protection of the purchaser, be taken to be within the power, it was held that a bona fide purchaser without notice took a good title though the mortgrge had in fact been satisfied at the time of sale (/>). It has been held that a power of sale contained in a mortgage will not be implied in a subsequent mortgage deed by which the interest then due is converted into principal and the total amount charged again upon the land ((/), unless there is something in the subsequent mortgage to indicate that the mortgagee is to retain the benefit of the power {r). But it appears from recent authority that unless there is something to forbid the presumption the mortgagee will not be deemed to have abandoned the power (s). And by a recent statute it is enacted that when a mortgage deed does not contain a power of sale the mortgagee shall have a power of sals after default for six months in payment of principal or any interest, or after omission to pay any insurance premium (t). It has been held that a power of sale may be exercised though the mortgagee has been in possession without acknowledgment long enough to extinguish the title of the mortgagor ; and this is said to be a con venient mode of conveyance for the mortgagee to adopt as it relieves him from the obligation of proving his possessory title (u). But when a mortgagee so conveys he docs so as owner and not as mortgagee, and is not bound to account for the (p) Dicker v. Angcrstein, 3 Ch. D. 600. (q) Curling v. Shuttleicorth, 6 Bing. 121. (r) Young v. Eobcrts, 15 Beav. 558. (s) Boyd V. Petrie, 7 Cli. App. 385. (() R. S. O. cap. 102, sees. 18 to 29. (m) JR^ Alison, 11 Ch. D. 284, 290, 295. NOTICE OF SALE. 359 :uJarity in protection v^er, it was )ok a good tied at the itained in mortgage erted into upon the ubsequent retain the ►m I'ecent orbid the I to have itute it is contain a er of suiS incipal or insurance exercised I without itle of the mode of ieves him title (u). wner and fc for the surplus (v). This position however is not safe from criti- cism. Mr. Justice Strong has said, " It must, however, be remembered that the power of sale is a power to sell and convey the equity of redemption only, and that the conveyance of the mortgagee for the purpose of carrying out a sale under it operates on the legal estate as a conveyance strictly and not as the execution of a power, from whence it follows that if the equity of redemption is gone by foreclosure or otherwise the power is also extin- guished "(ic). And where a mortgagee who had foreclosed made an agreement to sell, and by inadvertence a condition of sale was inserted providing that as the vendor was a mortgagee with power of sale, she would enter into no cov- enant for title except the usual covenant against incum- brances, the Court on a bill filed by the purchaser for specific performance refused in the exercise of its discretion to decree a conveyance under the power of sale which was insisted upon by the purchaser (a*). The power, however, may undoubtedly be exercised after defective proceedings for foreclosure ; and a convey- ance thereafter made may be supported as a conveyance under the power of sale though it in fact recites the fore- closure proceedings and professes to be a conveyance by the mortgagee as absolute owner (y). 2. Notice of sale. When the power provides that it may be exercised without notice, no doubt the agreement of the parties will govern ; but it has been said that such a power is oppres- sive, as it puts the mortgagor completely at the mercy of {v) Ibid. And see Re Harwood, 35 Ch. D. 470. («•) Kelly V. Imperial L.d; I. Co., 11 S. C . E. at p. 528. And see Watson V. Mamton, 4 D. M. & G. 230. (x) Watson v. Marston, 4 D. M. & G. 230. (?/) Kelly V. Imperial L. & I. Co., 11 S. C. R. 516. 360 SALES UNDEll POWERS IN MORTGAGES. tlie mortgagee and enables the latter at any moment to extinguish the right of redemption without notice to the mortgagor (3). And the mortgagee must in all cases act, not in an arbitrary manner, but with reason, prudence and discretion. Hence, his proceedings would be very strictly scrutinized if he undertook to sell without notice. Where a power of sale was tested in a truf^^ee for sale, the Court i"estrained a sale on the motion of the mortgagor until the trustee had notified both the mortgagee and mortoajjor ; thouffh in the same case a motion to restrain the mortjjaoee from proceeding without notice, made under the appre- hension that the power was vested in the mortgagee, was refused (rt). Where notice is required to be given, but no length of time for the notice is specified, it is apprehended that a reasonable notice must be given ; and reasonable notice would probably mean a notice not onl}- giving a reasonable time, but also being given under such circumstances that the mortgagor might reasonably be able to comply with the demand for payment (b). The power contained in the statutory short form is exercisable only after giving written notice ; and the con- sequence is that the mortgagee cann^^t lawfully proceed to sell until the notice has been duly given. A preferable mode of framing the pow^er is to make it operative ^^ ithout notice, and add a covenant by the mortgagee not to exer- cise the power until he has given notice ; or to provide that if default is made for a period longer than the period of default for wdiich sale may be had on notice, then tint the power may be exercised without notice (c). (z) Miller v. Cook, 10 Eq. at p. G17. (o) Allan.. 6 Mad. 10. {b) See Massey v. Sladen, L. R. i Ex. 13; Moore v. Shellei/.S App. Ca. 285. (c) Leith R. P. Stat. 373, 424 n. (i). NOTICE OF SALE. 361 oment to ice to the cases act, lence and y strictly . Where ;he Court until the jrtoacjor ; lortg-ao-ee le appre- igee, was length of d that a le notice jasonable ices that ply with form iis the con- •oceed to referable A\ ithout to exer- nde that jeriod of that the 7/, 8 App. Where a power was exercisable after default made for one month and upon one month's notice of sale, it was held that no proceedinj^s for sale could be taken until after the expiration of the month's default, i.e., that the notice of sale could not run concurrently with the period of default (r/). But the authority of this case is doubtful ; for it has been held that there is no objection to a mortgajjjee's entering into an agreement to sell before the expiration of the time given by the notice of sale, the agreement being conditional upon non-redemption by the mortgagor in the meantime(e); and where a six months' notice was served after its date, but the sale did not take place until after the expiration of six months from the service of the notice, it was held to be valid (_/'). And where a power was "provided that the mortgagees on default of payment for three months, may enter on and lease or sell the said lands without notice," and was followed by a covenant not to sell until one month's notice of sale should be given to the mortirairor, it was held in an action by the mortgagor to set aside a sale, that the notice might be given at any time after default, provided that no sale was effected until after the expiration of one month from the service of t)ie notice on the mort- gagor ; and that the purchaser took a good title, the only redress of the mortgagor being under the covenant (g). The notice should intimate the purpose of the mortgagee in giving it. And so, a notice that unless payment were made within three months from *^he service, the raortjjaffee would " institute legal proceedings to gain possession," was held ineffectual to support a sale. It should be given to the persons indicated in the power,which should be followed strictly in this respect if the giving of the notice is a con- Id) Gibbons v. MoDoitgaU, 26 Gr. 214. If) 31ajor V. Ward, 5 Ha. 598. (/) Mettera v. Brown, 9 Jur. N. S. 958. (fl) Grant v. Canada Life Ass'ce Co., 29 Gr. 256. Mli'i s\Ms r\nM< i't>\vi:nM i\ Mmnii nokh. ili(i«M> i>r (1\(> »'\('iriMo ttl" till' powtM So, wIumo ii puwci r(>t|ni»0(l i1m' noliiM* («» In* |^i\i>ii lo lln' ni-.trlj^Mij^'jir. " lii't hiMVM ('\t'«MiltMs t>r M l^isM* stMxctl iipon l»o(l» Hti' l\(Mf mill ll\i' nilinini'ij riilnr. IIh* «lisi\)no(i\ o ooniMurliitM liMvitt^ it'l'iMiMiri' only li» llti> prr sy\\\;\\ \opn>Mi'n(Mli\ I'M .nxl mil In IIh'im mmiI IIh' IicIvmiA). \\ hrn ihi' pi<\\(>r ri'nuin'n tinlin' In l»r uivi'ii li» lln' iWvMli^Mii'M-, hi-* |\<'ivM iM- M'AHiu'UM. Mti'l llii' iMi>rli;Mj^i>r Im^ «M«'Ml('t| t\ SiTOUil n\iMl«.;ML:<', il is Mill MMllicil'lll III }ji\i' m »\oti«'i' lo lilt' \\»(Mli^;i},ii»r !il«mo II 'tlimiM lie himm'iI n)iiiM llu' i\\o\|oiU'i>r r smIi' iM i'MTcIn mMc \n>on nolirc lo Iho " mumIom^vt. lii.s lu'iiN or iiMHimiM." Kv 77,, l\rol)ii,.-i) o/ /v'.s/.j/fs .1,7, Issd. i| is iliTlmcil lluil \\w \;\\h\ of .-nn- luTson dvinv' linu'." lo l»i' ijis tviUuloii MS porsvMiMliy. The rosult ol" t his cntu'hncnl wmm t ' r;ns«' a (liMibl ;>s \o i\\o ronslrijrlioM ol' .mII olilioMliniiM iiupv>so«l In oom I'yoiu'i's \\\un\ or in l.-iNonr of heirs. Ami t»> ;\\h\\ tho .ioiilil :\ y\'U\vA'\i\\ ,\('l wns ]>Mss»'i| whirh iloolart^s tliJil. " In tho oase ol' t\ person liyitiy nl'lei' I lie Isl. v^f .hily. 1>S»\ his personal n'preseijtalive I'oj" I he lime beiuii' shall, in thv' inte)'preta(i^M\ o\' any slalule xA' Ihis Tn^vinoe. vm- in iho oojistruotiojj of ;\\\y instrunu'nl- lo \v]\ioh tho f thfm." {i) H<\^?<- V. Smith. 17 i'li. P. A'M. (.;) .m) Viot. OAp. 7, s^v. ;v*> ; now K. S. O. cup. 10>^. soo. 10. NUIM i; 1)1' MAMV lU'iA J^'JM'. " llJM M (lllli M nlllii liinn inloi-, |Im> I (lu» jK'l- irM(/0. lit >;i^•' M liyllM Mini iiMniiinM." iir(>il Hint '^l liny ol' ilni y "Mm It if' It'MnI > lie (Hm UCIll. WMM ilij;M(ii>iiM rs. Ami il wliirli V tli.« I si. Lho l.iiiu» ' »»r iliis nuMit. (o lu> W.MS ■< " umN>ss 1" of this Aisf if tlin nil' or uii(> \''iy imulillrinl I'liiicl iim nl Ipr (linl. vvImtcvm IIh- |(lirii,HM ' Im'IiM Mini MHHt^llH " nCCIIIH, il. mImiII Ht^fuWiy Mlf< |it>rMOI|tll I i|ii«>H«>tilii( iv)', IIh'Ii il. liM'4 III) M|i|>li('Ml inn lo IliM |iri>Mi>iil. niMC . I'nf I III' t>x|iri'MHiMii in l|i<> ftlmil I'm in i'l ' Im'Jih or- M'^NijJiiH, ' ir, nil IIh' oIIh'i IimiiiI, il uint iiili>n)l<'i'Muiiiil n>|iriiiliil.i\ << \Mi>i Id Iik IiuI.Ii iin Ih ir firhl mii iiMMiiMi, lln>n M('i\it'(> mi liiiii in filhcr ni|i(M'ily inny '"" MiiHicii'iil II niiiy iiImo \ lln' In-ir, vvIu'IIm'I' IIiomm who wt'H' I'ltiiiMMly II' iiM )iii« iMil, nnw t'M'Clllnr, II. ili'Nis'r llltillHll.cly l(|.l-.<'M l.llf I'Kllllt- Hllltjt'cl. Ill CxiHlill^r |lli»r|jjr(|M(>H(/.). 'rilill|(.;ll IM'il 11" T ' !<• V inc/'H iiiir iir\|. of Kill now i|i'ri\t' lilli' iniiii(' M.tliiiiiiiHl-rnt.or ji,fi()into<'e as are mot with in Hndin<( n person to receive it on the death of the mortgagor. The notice may be served upf)n the person in). Jt need not be jrivon to persons claimin<^ ))aram()unt to the morti>ao()r, aim not tlirou^^h or under Inm. \v hero tnoy have titlo paramount to the mortpijjfoo the latter can of course sell subject to their interest, but where a mort- uay'or took by a conveyance which was void as ap^ainst creilitors and then convovod to the niortuniroe without notice, and the convevance to the morti^aijor was afterwards set aside as ajjjainst his creditors, it was held that the niortfjaijee was not t)blii!:od to uive notice of exercisino- the power of sale to the creditors of the mortgagor, as his title was not atlectod bv their decree, but was paramount to their titlo, though they might have had a right to redeem the mortgagee and to re(|uire him to account for the proceeils of the sale {q). 4 (h) Parkinson v. Hnnhurij, L. R. 2 H. L. at p. 18. (()) liobt-rtKon v. Lockie, 15 Sim. 2S.'). Shadwell, V.C, said that the party who served a notice of dissolution of partnership was not boiuul to lind understanding; for the person on whom it was served. See also Jlellarsh v. Keen, 27 Beav. 236. 0^) liartlett v. Jiill. 28 Gr. 14. Woods v. Hyde, 19 W. R. 339. In Trnceij v. Lawrence, 2 Drew. 403, the notice was served on the infant anil her guardian. {q) Major v. Ward, 5 Ha. 598. i: NnlICK OK SAI-K. mr> «l<>ul»tful Imh iiowor S r«'HOl'VL'', his heirs or assiy^ns, " either personally' or at his or their usual or last place of residence within this Province." It was held by a J )i visional Court, reversin^^ the decision of Proudfoot, J., that it was not essential that the mortgaj,^or should he out of the Province in order that service mi<,dit he made at his last place of residence (f). The decision of this (juestion was not necessary for tlu* disposal of the motion before the Court, which was an api)eal from the certificate of a taxinjj master allowin^^ the costs of so ettecting service, and was ultimately determined by the Court of Ap])eal on tluj sole i^round that the solicitors had not been so nef^ligent in proceedin^^r as to disentitle them to costs against their client. The point cannot there- fore be said to be settled. Service mt v be effected in three different modes under this provision, (1) by personally servin<^ the mortgagor; (2) by leaving the notice with a grown-up inmate at his usual place of abode in the Province, by analogy to service of proceedings in the Court of Chancery ; and (3) by leaving it at his last place of residence in the Province (ic). It is (>•) Re Abbott & Metcalfe, 20 Ont. R. 299. Sed quaere as to an execu- tion creditor being an assign. (s) Stewart v. Rowsom, 22 Ont. R. 533. (t) O'Donohoe v. Whitty, 22 Ont. 424. (?t) Per Boyd, C, in O'DonoJwe v. Whitty, 2 Ont. R. at p. 430. ;u;o SAI-ES INDKU I'OWKUS I\ MOimiAdKS. v.itli rojfjird to tlu' lust inodr of scrvico that tlu' y leavini,' it at such a place whether the niort;;a;(or were at the time within or without tlie IVovince (r). The words as they stand, looking; at their hare nu'anin<,s are amhi^nious. The "last place of residence within the Province" may mean either the last place at which the mort;;a<^»>r resided in the Province before leaving;' it, or the last, l.f., the l)resent t)f several places in the l'ro\ ince at which he has resided at diflerent tinjes. Adoptintj the latter construc- tion, we find that it produces a further and)ii]fuity. If he has occupied more than one place of residence at ditt'erent tiuies, the last is necessarily his present place of residence. For, if we re;;ai'd as the last the one which lie occujiied innnodiately before his present place of residence, then when he has occupied several and is still living in the Province, it will always be sutticient to leave the notice at the one which he occupied innnediately before his present place of residence. But it ctmld not have been intended that the notice should be sufficient if left at the place where from its very nature and description the mortut if he d(X!s waive it he must give a new notice if he desires to take advantage of the same default (.«). But a mortgagor cannot waive a notice, when notice is necessary, so as to enable the mortgagee to sell, if he has created incumbrances subsequent to the mortgage under which the sale is proposed (y). By The Ontario M<>rt(fa(fe Act, IHHJf, {z), it was enacted that " in order to prevent the making of unnecessary and vexatious costs in respect to mortgages it is liereby enacted that, where pursuant to any condition or provis(j contained in a mortgage, there has been made or given any demand or notice either requiring payment of the moneys or anj-^ part thereof secured by such mortgage, or declaring an intention to proceed under and exercise the power of sale (w) Parkinson v. Ilanbury, L. B. 2 H. L. at p. 18. (x) Tommey v. White, 3 H. L. C. 49. (y) Forster v. Hoggart, 15 Q. B. 155 ; Selwyn v. Garfit, 33 Ch. D. 273. (f) 47 Vict. cap. 16, sec. 1. 36« SALES UNDER POWERS IN MORTGAGES. contained in such niortga(;e, no further proceeclin<;s at lnw or in. eqiiitij, and no suit or action either to enforce such mortgage, or with respect to any clause, covenant or pro- vision therein contained, or tlie hinds or any part thereof thereby mortgaged sliall, until after the hipse of the time at or after which, according to sucli demand or notice, pay- ment of said moneys is to be made, or said power of sale is to be exercised or proceeded under, be conniienced or taken, unless and until an oi'der permitting the same shall first be had and obtained either fi'om the judge of any Count}^ Court or from any judge of the High Court." Upon the revision of the statutes in 1887 (the distinc- tion between law and ecpiity having in the meantime been practically abolished), the phraseology of the section was altered, the italicized words being struck out ( '0. with a result v/hich will be noticed presently. The oi'der may V)e obtained (■.»■ put'te, but only upon such affidavits and proof as will satisfy the judge that it is reasonable and e(]uitable that the proposed action or pro- ceeding should be allowed to be taken. The etiect of the original enactuKait was to stay all proceedings other than the sale proceedings which the mortgagee might otherwise take until the time mentioned in the notice had elapsed, unless a judge's order had been obtained permitting such proceedings to be taken. Since the revision of 1887 the phrase " further proceed- ings " has an enlarged signihcation on account of the elision of the words " at law or in equity," and include.* the very proceedings of which the notice is but the first step (J)). 8o that a notice specifying a time within which payment is to be made or at the expiration of which a sale will take place, practically defeats its own purpose, and ((/) R. S. O. cap. 102, sec. 30. (h) SniHh V. Brown, 20 Out. R. 105. i 'I SALE AND CONVEYANCE 369 t(H a* Idw n'ce such it or pro- •t thereof the time •tice, pay- jr of Hule lenced or line shall e of any irt." J distiiic- iine heen 3tion was ), with a ily upon that it is 1 or pro- ct of the her than >therwise 1 elapsed, Aug such proceed - t of the includeii the first in w^hich ch a sale DOse, and stays the proceedings of Avhicii notice is given until the time mentioned in the notice lias expired. It is advisable to avoid this result by refraining from iniierting a demand for the money in the notice (which is entirely unnecessary), and by giving notice of proceeding to exercise the power forthwith. It makes no difference whether the action is commenced before or after the notice of sale has been given ; all pro- ceedings are nevertheless stayed (c). It will be observed that the Act stays proceedings until after the lapse of time mentioned in the notice. And as it is most inconvenient for the mortgagee not to be able to connuence an action to recover tha land in order that he may be able to give pos- session to a purcliaser, it is reconnnended that for this pur- pose also the notice of sale should specify that the power is to be exercised forthwith. 3. Sale and conveyance. The legitimate purpose of the power being to secure the repayment of the mortgage money, it follows that if it is used for any other purpose, or to serve the purposes of others than the mortgagee, it is a fraud on the exercise of the power (d). Hence, where a power of sale was exercised for the purpose of ousting the mortgagor from his share in a newspaper, the sale was set aside (e). Nor must the power be exercieed in an oppressive or arbitrary man- ner (/), nor without giving due notice and allowing a reasonable opportunity of complying with it (rj). (c) Perry v. Perry, 10 P. B. 275. (d) Robertson v. Norris, 1 Giff. 421. (e) Robertson v. Norris, 1 Giff. 424. oint'^lVj""'?? r ■^'^""*''^''' "* ^°"' ^•^•^' feversei without affecting tiii3 o^- (^,V^""''/" y-, ^«'^/^'' 3*< <^h. D. 273; Moor^ v. Shelley, 8 App. Ca. ''iSa; Massey V. Sladen, L.R. i Ex. 13. TMLES— 24 370 SALES UNDER POWERS IN MounUdEH. If tho niortj^aj^eo pi*cHsivo ; and opprosaivo or vexatiouH oxerciHo of the powor will not only invalidate the Hale as apiinsi a pui'cha.ser having notice of the circuniHtanceH (h), hut will relieve him from the ohligation of carrying' out the sale (0- And jirreat lapse of time (in the case cited, fifteen yeai*s), will not har the right to redeem (j). The sale must of course be hova fi). And thoH(^ claiming under the mortgagor have no higlnir rights than he has, and their C(ms»!nt is therefore unneces- sary ( '/)• The mortgagee is not a mere trustee, but has a bene- ficial interest in realizing the security so as to get his principal, interest and costs (r). He nuist not exercise that right without a «lue i-egard to the uiterest of the mortgagor, which re(|uires that the sale should take place as benefici- ally as if he were himself selling {»); but as long as he exercises it hovti Jul" for the pur[)os«! of recovering his debt, without corruption or collusion with the purchaser, the Court will not interfere even though the sale be very dis- advantageous, unles/j indeed the price is so low as of itself to be evidence of fraud (/). When the power gives the right to sell either by public auction or private contract, it seems that the mortgagee is not bound to put up the property for sale by auction before attefupting a private sale, if the oft'er made on the private sale is a fair one ; nor is he as a conse(juence bound to advertize {iC). But where an estate was sold by offering it to an asHembluge of persons called together to bid, but no advertisement had been published, and the land was sold for a little more than half the amount due on the mortgage, ght of the le surplus, (p) Hampihire v. Bradley. 2 Coll. at p. 40. (g) Alexander V. Crotby, 1 J. <& Lat. G66. (r) Cholmondeley v. Clinton, 2 3. & W. at p. 182, tt leq. ; Warner v. Jacob, 20 Ch. D. 220. (») Falkner v. Eq. Rev. Soc'y., 4 Drew. 355. (0 Warner v. Jacob, 20 Ch. D. 220. (u) Davey v. Durrani, 1 DeG. & J. 535. See Ord v. Noel, 5 Madd. at p. 440 ; Latch v. Furlong, 12 Or. at p. 305. «72 SAI.KS INDKIl I'OWKHS IN M(»IIT( JA(JKH. tho sjiK' WHS H(>t »isi«K» (r). Tho rijjjht ol' tli<» mort|;a;4«'o with ivs|H»ct t«) Hi'Ilin^' «h>))(>iiroro wIumi it authorizoH a nnU* l»y ])iil)li(' juiotiojj only, a |>rivat<> hmIc will not. Im' valid {tv). 'rho>i;;;h a niort^a;jf«M> is hound to act roasouahly and with (he sanu' oan> and piudonct? thafc a pnidoni nuiii would in .s('llini>' his own |)ro|M'rty and prrvt'ntinj^ a saorifio(> {.v), h«> is not hound to sjKurulato, or wait in thf lm|)»> that, a lar^oi- sinn will ho ohtaincd.il' in fact a rcason- ahlc otlor is niado (//). Hut where a niort;jja^ce ollerod the property for sal(» without ailvertisetnent, sayinjjf that "nil ln> wanted was to p't tlu' money du.e him, and he woulil let the projierty <:;o," tlu' sale was set aside (c). The duty of a in«)rtj^a l»y ]ml>lic laltly and (loiii innii venting a ait in tlic . a rciaHon- )fU'r(Ml the that "all 1 VVouM let o iiial\in<> ^\fUn<'r V. here said, th(»\ij;h of ;ho hirjifest >lIovv that to obtain /s the best 'tor selling mlH occur, act, wliich t does not o to some offered at V. Hodges, S3. I Coll. 466. the Hah), they are conditions which are really to the detriment of the niortj,'a<,^or. If siich a conditi(»n as this I that the vendor inij^ht rower the strong' impression upon my mind is this, that tluj (|m!stion is !>(>t sim|)ly wlnsther such a condition may tend to ^linunish the innnber of buyers or the sum which any bidder may Ite disposed to ;^ive, but whether it would tend to the detriuient of the mort^a^or or of an absolute owner, or l)e prud«'nt in an absolute owner. If it would be prudent in an absolute owner it is not imprudent as artectinfjf -v mort^'a;,r(»r" (/>). In one case it was held that a condition that the abstract should commence with a certain wner beino- clear (.r). If from any reason the conveyance does not operate to give the purchaser a good title, it will still operate as an assignment of the mortgage (; eot Ih to hIiow jnt, it8 (late of IMtECEDENT. 381 freeliold estate •II [or admea- jots NumberH iHip or , in s. £100. Lot i Seal of tlie 8.-.8(U7--2nd July, 171(2. Urd October, 17!»2. Mortj^aye. AniiAiiAM HMini. iHt pt., Sithvn Smiiii. 2i.d pt., .loiiv Nokkh. 3rd pt Cons. tlOO. Haiueland. Uar«.iin. Hell. etc.. and inort«ttK« to John NoKKH, liiH hr«. and asHna. forever. Phoviho for bein« void on payment of £100 and int. an tlicrein set out. COVENANTH IIV AllllAHAM HsiITll, 1. To pay int^e. money, etc. 2. For Kood title in fee simple. B. Ui^ht to convey. 4. Quiet possesHion on default free from incumbranceH. 5. Further aHHurance. <■(. Anainrtt incumbranceH by liim. « Heleahk of all clainiH, and Hah ok Doweh. Power of sale to be exerciHed on default in paymt. upon notice. Pkovisoeh for distress for arrears of int., acceleratin;,' paymt. of prin on default in paymt. of int., and for quiet possession by the mtijor until default. " Executed by Abuaham Smith and Susan Smith in presence of two witnesses. Certificate of retjistration endorsed. i Sale. lAHAM Smith, transfer and 4.-10673.-4th July, 1800. .5th July, 1800. Statutory Discharge of above mortRafje signed by John Nokes. Certificate of the registration of this discharge endorsed on the mortgage. )ne witness. 5.-11671.-10th May, 1805. 11th May, 1805. Bargain and Sale. Abbaham Smith, widower, 1st pt., William Green, 2nd pt. Cons. £500. Same land. Bargain, sell, etc., to William Green, his hrs. and assns. forever. Habendum, to sd. W. G., his hrs. and asans. forever. Covenants by Abraham Smith, 1. Right to convey. 2. For quiet possession free from incumbrances. 3. For further assurance. 4. Against incumbrances by him. 382 ABSTRACT OF TITLE. Release of all claims. Executed by Abbaham Smith in presence of one witness. Certificate of Registration endorsed. Declaration by C. D., an acquaintance of Abraham Smith, of death of Susan Smith, his wife. AS TO EAST HALF OF LOT THREE. 6.— 11890— Ist October, 1820. 2nd October, 1820. Conveyance. William Green, 1st pt., Sarah Green, his wife, 2nd pt., John '3been, 3rd pt. Recitals. John Green is the son of William Green ; desire of William Green to advance him in pursuance of which he makes this conveyance. Cons. Natural love and affection and five shillings. East ^ of lot three. Bargain, sell, alien, transfer, assign, enfeoff, etc. , to John Green, his hrs. and assns. forever. Habendum, to John Green, his hrs. and assns. forever. Release of all claims. No covenants. Bar of Dower. Executed by William Green and Sarah Grien in the presence of one witness. Certificate of registration endorsed. 7.— 12340.— 12th April, 1835. 13th April 1835. Mortgage. John Green, Ist pt. , Emily Green, his wife, 2nd pt., James Toleb, 3i-d pt. Cons. £C00 Same land. Grant and mtge. to James Toler, his hrs. and assns. forever. Proviso for being void on paymt. of £600 at expiration of five years with int. half-yearly at 7 p. c. on 2nd January and 2nd July in each year, till whole am't, be pd. Covenants by John Green, 1. To pay mortgage money, etc. 2. For good title in fee simple. 3. Right to convey. 4. Quiet possession on default free from incumbrances. 5. Further assurance. 6. Against incumbrances by him. Release of all claims, and Bar of Doweb. b, of death of ial estate and effects of the said John Green were granted by the Surrogate C^urt of the County of to the , aid Emily Green. On the t:ame day letters of guardianship to the said infant daughter were granted by the same Court to the sd. Emily Green. — 13401— 12th May, 1842. 13th May, 1842. Ccnveyance. James Toler, lat pt., John Smith, 2nd pt. Becitals. That John Green, by Indre. bearing date 12th April, 18B5, [further describing mtge. by Green to Toler] did mtge. land therein and hereinafter described to James Toleb, etc., which contained proviso for being void on paymt. of, etc., and also a power of sale [abstract shortly ] ; that default was made in paymt. of int. which fell due on, etc., whereby the whole prin. money also fell due, and more than two months elapsed, etc. ; that John Green departed this life on, etc., leaving him surviving', etc. ; that notice was given in writing to sd. [infant daughter] his heir- at-law by deli vexing a copy thereof to her, and aico a copy to the sd. Emily Green, her guardian, duly appointed by the Surrogate Court of the county of , of intention to exercise thi3 power of sale in said mtge. and more than one month elapsed thereafter ; that sd. land was exposed for sale by publio auction after being duly advertised for sale by E. F., auctioneer, at , and that no bid w&a obtained therefor ; that subsequently John Smith offered for the sd. land the sum of 91,000. Cons. 91,000. Same land. 3S4 AUSTUACT OF TITLE. Grant to John Smith, his hra. and uaans, forever in piirBuance of the power of sale, etc., and all other iMjwers, etc. Hahendcm, to John Smith, his hrs. and assns. forever. Covenants by James Toleu that he has done no act to encumber. Executed by James Toleh, in presence of one witness. Certificate of registration endorsed. Declarations of posting up and publication in newspapers of adver- tisements for sale of land ; of service of notices of sale ; of auctioneer as to attempted sale by him ; of default in payment of interest. 10.— 14G70— 12th December, 1807. 13th December, 1807. Grant. JoHM Smith, Ist pt., Auel Gueen, 2nd pt., Adelia Smith, 3rd pt. In duplicate. In pursuance of the Short Forms Act. Cons. :S2,000. Grant, to Abel Green, his hrs. and assns. forever. Harenddm, to .\bel Green, his hrs. and assns. forever. Coven.\nts, Short form. Bar of Dower and Release of all claims. Executed by John Smith and Adelia Smith in presence of une witness. Certificate of registration endorsed. AS TO WEST HALF OF LOT THREE. 11.— The said William Green died intestate on the 1st November, 1853, leaving him surviving two daughters, Amelia Gheen, Adelaide Snooks, wife of George Snooks, three sons, Abel Greek, Jason Green and Samdel Green, and Victoria Green, the infant daughter of a deceai^ed son, John Grben. Declarations of X. Y., N. M. and others. Certificate of burin .( of William Green. Letters of administration granted by Surrogai^*^ Court to Abel Qreen. 12.— 14606- deed. -10th June, 1860. 16th June, 1860. Memorial of Partition Amelia Green, 1st pt., Adelaide Snooks and Georqe Snooks, 2nd pt.» Abel Green, 3rd pt., Jason Green, 4th pt., Samcel Green, 6th pt., Victoria Gbeen, 6th pt. PRECEDENT. 885 rsuance of the cumber. pers of adver- of auctioneer if interest. Grant. Srd pt. ona. »2,000. I una witness. S T '■ V. "'" ^"''^ """' '''''^ '» '«« ^^^ died intestate etc Leav.n« him surv.v.ng parties hereto, etc. Agreement to partition by a Iott.n« one sixth part hereinafter described to Amkua Gbkkn who agreed to accept same, etc.. and by allotting to Abe. Gbkkn residue in cons.derat.on of paymg to each of the others except Amk.u Gbkk"! Con8.^,.500 pd. to each of said parties except A«p..u Gbkk. by sd. Abk. Grant and release by all sd. parties except Abkl Green to Abel Gbken his hrs and assns. forever, all west half of lot three, except part par' Cons, agreement to make partition and »1.00. All said parties except Amklu Grekn. grant and release to Amh.u Gbekn-. l:e. l.rs anrassns forever that pt. of lot three described as follows [describe it' B^d^r^rpl^ely.-^ Executed by all parties in presence of two witnesses Memorial signed by Abel Guekn. Certified copy produced. The deed :l IlJlt^d^r.'^ ' '"^'"°'^' ^^ "°^ ^" ''' ^°--^-' -«*°^^ - power 'ember, 1853, [-aide Snooks, I Green and 3f a deceo/^eJ of bnria, , ^ »y Surrogaff» of Partition >0KS, 2nd pt.» SEN, 5th pt., 13. Certificate of burial of Sarah Green, wife of William Green 14._10th August. 1874. Will. Amelia Green, by her will of this date executed in presence of two witnesses present at the same time wt subscribed m presence of the testator, devised as follows :-•• I leave the lot of land I occupy next to my brother Abel, part of the old home! stead, to my brother Abel for his own use." The vendor will register this will. » AS TO LOT FOUR. 15.— 8th July, 1805. Letters patent. Grant to James Brown, his hrs. and assns. forever. Cons. £50 Lot Province ""''""""'"" "' ~- ''''^'' *^« ^"** Seal of the TITLES — 25 8.S6 AHSTRACT CF TITLE. 1(5.— 2878— Ist October, 1810. .SrdJnly, 1830. Lease. Jamkb Hhown, Ist pt. AnuAHAM Elliott, 2n(l pt. Cons, of rents, pro- visoes, aiul conditions. Demise to AimAiiAM Elliott, Iuh exors,, lulmrs. and assns. Hamo land. Rent il\ per acre per annum, payable annually. Term, .'iOO years. Oovknanth by Abraham Elliott, 1. To pay rent. '2. To pay taxes. ;j. Not to cut timber. 4. Not to assign or sub-let without leave. 5. To build a house of brick and stone worth at least C')00. ("ovKNANT by lessor for quiet enjoyment. I'kovisi) for re-entry on non-payment of rent or non-performance of covenants. Executed by both parties in presence of one witness. Certificate of registration endorsed. 17.— 1'.)7(> -1st August, IS'20. 8tli August. IS'21. Memorial of Haigair. and Sale, Jamks Bhown, Ist pt., Wm. GiiANT, 2nd pt., Amelia Bkown, 3rd pt. Cons. i''20U. Same land. Hargain, sell, alien, etc., to Wm. Guant, his hrs. and assns. forever. Hakicndim to said Wm. CJhant, his hrs. and assns. forever. Bak ok Dowkk. Executed by James Brown and Amelia Brown in presence of two witneriSis. Memorial signed by William Grant. Certilicd copy produced. The deed of which this is a memorial is not in the possession, custody or power of the vendor, but affidavits ot A., B. and C. are produced, showing that James Brown was iij possession at the time of the deed and gave possession to Wm. Grant, who occupied until he sold. 18.— 2001— 10th February, 1830. loth February, 1830. Memorial of Bargain and Sale. William Ghant, Ist pt,, Georoe Smitu, 2nd pt. Cons. £100. Same land. of rents, pro- r, liiH exors,, nnin, payable rfonnaiioo of PRECEDENT. 387 GiuNT, bRr«ain, sell, etc., to Grohok Smith, Iuh hrs. and rhshs. forever. Executed by William Oiiant in presonco of two witnesses. Memorial signed by Wim.iam Oi.ant. Certified copy produced. The deed of which this is a memorial is not m tl.e posHossion, custody or power of tlio vendor. ' Dkcukationm, of E., F. and O. that William Grant was unmarried on 10th February. 1H30, 19.- iho said AimAHAM Ei.mott died intostate on the 7th October 18'>0 and on the 12th December, 182!), letters of administration of the estate and effects were granted to .Iank Ei.Morr by the Surroj-ato Court of ilie 1 of Har^^air. 3i"il pt. I. GiiANf, Ilia 20. -2fi80-12th May, 1830. l;ith May, 1830. Surrender. senco of two iced. lion, custody •e produced, .he deed and [emorial of 100. Same -lANic Ei,MorT, adnnnistratrix. 1st pt., Gkokuk Smith, 2n,l pt. Cons. tlO. Same land. Surrender and yield up, etc.. all the term une.Kpired, etc Executed by Jan., Er,uorT. administratrix, in presence of t.o witnesses. Certificate of registration endorsed. 21. -39r,7-llth Juno, 1811. 12tli Juno, 1811. Mo-t-i^... Gkouok Smith. Ist pt., Emily Smith, his wife, 2nd pt" Tin- Loan a-„ lNvn:sTMKKTCo.,3rdpt. Cons.^l.OOO. S.une land. Grant and n.-te to the Loan A Ixv. Co., their succrs. and nsHiia. Pijoviso for beinf,' void on paymt. of H,800 in ten eaual annu tl instil ments of ^180. Rele.\se of all. claims subjeci to proviso. IJau ok Dowku. Covenants by Georok Smith. 1. To pay inort^'a<,'o money. 2= For «ood title in fee simple. 3. Right to convey. •t. Quiet possession on default. 5. Further assurance. C. Against incumbrances by liini. PowEn of Sale to be exercised as therein set f ;rth. I 388 ABSTRACT OF TITLE. Provisoes for aocelaration of paymt. of all instalments on default in one ; for distress for arrears; quiet possession till default. Executed by George Smith and Emily Smith in presence of two witnesses. Cert, of regis'n. endorsed. 22.— 5680.— Gth August, 1845. 7th August 1845. Grant. George Smith, 1st pt., Robert Black, 2nd pt., Emily Sbiith, 3rd part. Cons. 9500. Same land. Grant, bargain, sell, etc,, to Robert Black, his hrs- and assns. forever. Covenants by George Smith, 1. Right to convey. 2. For quiet poss-'ssion free froip incumbrances except a mortgage to The Loan and Investment Co. 3. For further assurance. 4. Against incumbrances except sd. mortgage. Bar of Dower. Release of all claims. Covenant, by Robert Black to pay off the mtge. to The Loan and In- vestment Co. and indemnify George Smith against same. Executed by both parties in presence of one witness. Certificate of registration endorsed. 23.— 5967.— 7th March, 1846. 10th March, 1846. Mortgage. Robert Black, 1st pt., Frank Moses, 2nd pt., Edith Black, 3rd pt. Cons. $500. Same land. Grant and mtge. to Frank Moses, his hrs. and assns. forever. Proviso for being void on payment of 8500 in five years with interest at 8 per cent per annum yearly. CovENANTi by Robert Black, 1. To pay mtge. money. 2. For good title, subject to mtge. to Loan and Inv. Co. 3. Right to convey. 4. Quiet possession on default free from incumbrances except sd. mtge. 5. Further assurance. 6. Against incumbrances except sd. mtge. )n default in lence of two PRECEDENT. 389 iH, 3rd part. isns. forever. mortgage to lOAN AND Im- , 3rd pt. sr. ith interest . Co. mces except Release of all claims subject to the proviso. Bar of Doweh. Power of S^le to be exercised as therein set oat. Provisoes for distress, accelerating paymt. of prin. on default quiet posse.- aiou until default. Executed by Robert Black and Edith Btjick in presence of one witness. Certificate of registration endorse —10340.— 12th September, 1852. 12th September, 1832. Mortgage. \Vm. Bates, Ist pt., Jane Bates, 2nd pt., Henry MANNing .3rd pt. Cons. $1000. Same lands. Obamt and mtge. to Henrt Manning, bis hrs. and assns. forever. Proviso for redemption on payment of $1000 with interest at 8 p. o. per annum in five years. Covenants by Wm. Bates, 1. Bight to convey. 2. For quiet possession. 3. For further assurance:. 4. Against incumbrances by him. Br lease of all claims subject to proviso. Bar of Dow er. Executed by William Bates and Jane Bates in the presence of twc witnesses. Certificate of registration endorsed. 27.— 114M,— lOth January, 1860. 11th January, 18G0. Vesting order. In a certain suit in the Court of Chancery brought for the sale of the said laud mortgaged by WiiiLiam Batks to Henry Manning, wherein Henry Manning was plaintiff, and William Bates was deft, such pro- ceedings were had and taken that on the 2iid Feburary, 1859, a Decree was made whereby it was decreed that if the said William Bates did not pay the sum of §1,259 to the said Henry Manning on or before the 3rd August, 1859, the said mortgaged premises should be sold, etc. ; that, no payment having been made pursuant to the sd. Decree, on the 2nd September, 1859, a final order for the sale of the said mtged. premises was made ; that pursuant to the advtmt. of the Master in Ordinary the said mtged. lands were exposed for sale by C. D., auctioneer, and Edward Irving was declared to be the highest bidder and the purchaser thereof; that the Master made his report so declaring him which was duly filed and became absolute ; that afterwards on the 10th J anuary, 1860, an order was made vesting in Edward Irving his hrs. and assns. forever, all the estate, right, title and interest of the plff. and deft, in and to the sd. land. Decree, Office copy Eeport on sale, final order for sale, and Vesting order produced. Certificate of registration endorsed on latter. 28. — The said Edward Irving died intestate on the 3rd July, 1886, and on 2nd August, 1886, letters of administration of all his estate and effects PRECEDENT. 391 2. Mortgage. 3rd pt. Cona. NINO, bis hra. jst at 8 p. c. real and personal were granted to William Irvinq by tbe Surrogata Court of tbe county of . Letters of administration and Statutory certificate of deatli produced. Declarations of William InviNo, Jane Invmo.and Ei.ward A. Irving of ineffectual search for will, that William Irving, their father, always expressed an aversion to making a will, and declared he never would make one, etc. sence of two iing order, e sale of the iNG, wherein ft. such pro- 59, a Decree tn Bates did )r before the d, etc. ; that, on the 2nd 3d. premises )rdinary the iioneer, and le purchaser which was th January, . and assns. and deft, in .nd S'esting 29.— 139'il— 10th December, 1886. 11th December, 1886. Grant. William Irving, administrator of the estate and effects, real and personal of Edward Irvino, Ist pt., Ahel Giieen, 2nd pt., Elizabeiic Irving, 3rd pt. Cons. $3000. Same land. By this deed "the said William Irving doth grant unto the said Abel Green, in fee simple, lot, etc." Bar of Dowkk. Executed by William Irving, adm., in presence of one witness. In duplicate. Certificate of registration endorsed. A deed of confirmation from Jane Iuvino and Edward Irvino can be obtained at the purchaser's expense if he desires it, but the vendor does not admit that it is necessary. AS TO LOTS THREE AND FOUR. 30.— 14670— 5th January, 18S7. 6th January, 1887. Grant. Abel Green, 1st pt. Ali.ax Uukr, 2nd part. Cordelia Grren, 3rd pt. Cons, 13000. Lots three and four. By this deed Abel Green " doth grant to Allan Burr, all and singular, etc." Bar of Dower. Executed by Abel Green and Cordelia Green, in presence of ono witness. Certificate of registration endorsed. 886, and on and effects 31.— 18390.— 10th May, 1891. Will. Allan Bdrr, by his will of this date executed in the p-Coonce of two witnesses present at the same time, who subscribed in presence of the testator, devised all his lands to his " four sons in equal shares forever." Allan Bcrr died on 15th May, 1891. Probate of the will. No caution has been registered by the Executora. Ha 392 ABSTRACT OF TITLE. 82. — 1st June, 1893. John Burr, one of the sons of Allan Bcrr, died intestate and unmarried. Samoel Burr, Aaron Burr and Jamrs Burr his only brothers and Alice Burr, his only sister survived him. No letters of administration were taken out. }.— 18660.— 6th June, 1894. Grant. Samuel Burr, Aaron Burr, James Burr and Alice Burr, 1st pt., John Stiles, 2nd pt., Elizabeth Burr, widow of Allan Burr, 8rd pt., Lydia Burr, wife of Samuel Burr, 4th pt. Recitals — That parties of Ist pt., (except Alice Burr) and John Burri were devisees under last will and test, of Allan Burr ; that no caution reg'd. by executors of will of Allan Burr ; that John Burr, one of the devisees died intestate on, etc., leaving him surviving, etc., the parties of the first part. Cons. — $5000. Lots three and four. By this deed the parties of the Ist pt. do grant unto John Stiles, his hrs. and assns. forever, all and singular, etc. Bars of Dower by parties of 3rd and 4th pts. Executed by Samuel, Aaron, James, Alice, Elizabeth and Lydia Burr, in the presence of one witness. Cert, of registration endorsed. There are no executions against the lands of John Burr, Samuel Burr, Aaron Burr, James Burr, Alice Burr, or John Stiles. All taxes except those of the current year have been paid. Receipts will be produced. endorsement. Take notice that you are required to serve requisitions and objec- tions within days [according to the time specified in the contract] , from service hereof. Dated 1894. To Messrs. Yours, etc. A. B. &C., X. Y.&Z. Purchaser's Solicitors. Vendor's Solicitors. AN BcRR, died d Jamrs Ddrr ed him. No J at pt. , John Ird pt., Lydia d John Burr. at no caution RR, one of tbe s., the parties IN Stiles, his )f Dower by Lydia Burr, reed. urr, Samuel 1. Receipts i and objec- le contract] , GENERAL INDEX. s Solicitors. "wm INDEX. Abstract of title, 27, et seq. commencement of, 29 contents of, 37 equitable interests. 87 delivery of, practice, 15 between parties, 45, 40 in M. O., 47 unavoidably prevented, 45 lenjjith of, 28 sixty years, 28 conventional period, 2!) less than, 134 more than, 81 older deeds, 31 P'.rfect, 40 should show all rej^istrations, 41 precedent for, 379 purchaser's duty on receipt of, 44 right to, 27 Eegistrar's, 73 not evidence, 74, 113 should be compiled from documents, 74 secondary evidence, may be used as, 122 verification of, 92 Administration, letters of, presume intestacy, 134 Administrator, title through, 298 Affidavit on memorial evidence of execution of deed, 111 Alimony, judgment for, may be registered, 157 effect of, 87, 157 396 INDEX. Aqueduct, easement of. Sec Easement. Appointment by will, how executed, 313 Attorney, power of. See Power. B. Banns, publication of, need not be proved, 132 Bare trustee, defined, 290, 293 devolution of estate of, 290, ct feq. mere depositary of le^al estate, 293 person beneficially interested may be, 290 with duties, not, 292 vendor with lien id not, 292 Bastard deeds, cancellation of, 1G4 Birth, statutory proof of, ?86, et seq. By-laws, proved by certified copies. 111 Cancellation of deeds, 164 Caution. See Dei'. Est. Act. • Certified copies of registered instruments, 104 purchaser may accept, 94 Clouds, registered, 163, et seq. should b3 abstracted, 37 (Jommissioner ma} take statutory declaration, 114 Concealment of documents, 39, 136 effect of V. and P. Act, 40 Conditions limiting title, valid, 7 must be clear, 8 strictly construed, 7 for rescission. See Ueschsion. Consideration, acknowledgment of, in deed, 110 Consolidation of mortgages, 172 Contract, rescission of. See Kenctssion, open, right to good title, 4 to sell imports title in fee, 4 INDEX. 397 Conveyance, mattoi-s of, and matters of title, 42 preparation of, evidence of waiver of title, 2-i Counsel's opinion as waiver of title, 24 Courts, seals of, recognized, 112 Covenant against incumbrances, not broken till purchasei disturbed, 141 local improvements not within, 152 t purchaser must rely on after convey- ance, 139 to produce, 236 runs with the land, 237 satisfaction of, under Custody of Title Deeds Act, 97 Crown bonds, 169 Curtesy, tenancy by. See Tenancy by curtesy. Custody of deeds, 118, 236 Title Deeds Act, 95 deposit under, fulfilment of covenant to pro- duce, 97 D. accept, 94 Death, presumption of, after seven years absence, 128 in case oi dower, 129 unma! ried, 129 statutory proof of, 286, et seq. Declaration, statutory, 113 may be taken by commissioner, 114 Deeds, ceriiaed copies of, as evidence, 121, 2 "j custody of. See Citntody. execution of, presumed, 106 affidavit on memorial proves, 111 by attorney, 107 registration proves, 107, 126 ]>rima facie evidence only, 107 inability to give covenant to produce, 235 Iftad sold in lots, 237 loss or destructio'j of, to admit secondary evidence, 117 lost, search for, 117 wl ere to be made, 118 with witness, 120 purchaser's right to, 234, et neq. 398 INDEX. Deeds, recovery of, after conveyance, 236 thi: y years old, presumed valid, 125 unregistered, void against purchaser without notice, 8H vendor must produce, 93 prove registration of, 95 where mortgaged lands, 98 Delay, evidence of waiver of title, 21 effect of, on rights of opposite party, 46 * Descent. See Inheritance. Devise presumed to be accepted, 133 Devolution of Estates Act, 295, et i>eq. administrator may distribute in specie under, 298 sell but not exchanj?e, 297 anomaly of, on intestacy, 290 applies to fee simple and lands limited to heir as special occupant, 295 land devised, how affected by, 298 in trust for sale, how affected, 299 when infants concerned, 298 shifts into beneficiaries when no caution registered, 301 when caution may be registered, 301 Discharge of mortgage, certificate of, evidence. 113 effect of, 221, 222 executor may give, 228 married women, 231, et seq. mortgagor not obliged to take, 220 mortgagee must register within six months, 224 name of person paying need not appear, 221 ' registered, does not affect right of subrogation, 224 surviving mortgagee, 228, et seq. vests estate in person best entitled, 221 Doubtful titles, 239, et seq. amount of doubt necessary, 244, et seq. classification of, 246 . difference of judicial opinion, 244 legal opinion, 252 general principle of law, 253 presumptions, 256 probability of litigation, 246 questions of conveyance, 257 INDEX. 399 83 Jecie uiiJer, 3hani,'e, 237 limited to w affected, led, 298 no caution 01 ntlis, 224 r, 22i Ration, 224 244 Doubtful titles, classification of, uncertainty of fact, 255 construction of instrument, 252 doctrine of, 259 origin of, 210, et sea. Dower, 176, et seq. bar of, how effected, 183 Dev. Est. Act, effect of, on, 184 equitable estates, 178 mortgaged lands, 179, et seq. partnership property, 178 presumption of death of husband after seven years' absence 129 purchaser entitled to release of, 175 absence, uj requisites of, 176 reversions and remainders, 178 tax sale, disposes of, 183 wild land, 177 Drainage, easement of. See Easement. taxes for, 150 B. Easements, 198, et neq. aqueduct and draiuaj;*', 201 arising by implied grant not within Re". Act 198 defined, 198 ° distinguished from profit a prendre and license, 198 lateral support, 202 light, abolished by statute, 199 on severance of tenement, 199 limitation of the right 200 may be acquired against registered title, 86,' 198 registration of, 86, 198 water, relating to, 202 See IVay. Equitable estates, sale of, under execution, 161 holder of legal estate selling must convey. 44 execution, 161 interests, how affected by Reg. Act, 67, et seq. arising out of conveyances and extraneonsly, dis- tinction, 69 'I? i 400 IN'DEX. Equitable iaterestB defunct, need not be abstracted, 37 registered owners and, 90 void as against registered title, 90 See Equity of redemption. Equity of redemption, contract to purchase, 142 indivisible, 158 not saleable under writ, whether purchaser can refrain from searching executions, 160 portion of, cannot be sold under execution, lu8 purchaser of, under writ, liable for mortgage, 157 sale of, under execution, 157 must appear on face of deed, 158 Estate tail, barred by mortgage, 224 discharge of mortgage of, 224 Estates pnr autre vie, devolution of, 286 Evidencp. admissible in action, is admissible between V. and P., 92 secondary, 116 loss or destruction of deeds, 117 by memorials, when, 120 V. and P. Act, is primary under, 101, 111, 121 Execution, 154 et seq. advertising sale under, 848 errors in, not fatal, 348 binds from delivery to sheriff, 154, 155 not after delivery of conveyance, 156 deed on sale under must be registered within six months, 155, 352 conveys only interest sold, 351 evidence of writ and judgment, 352 equitable estate, sale of, under, 161 equity of redemption, sale of, under, 157 effect of, 347 when one mortgage only, 158 not saleable under, whether purchaser should search for, 160 purchaser of, at sale under, liable for mortgage, 157 free grant land, not subject to, 162, 317 irregularities in sale uuder, not fatal, 349 joint estate of husband and wife, how affected by, 346 judgment for valid debt necessary to support sale under, 349 put-chaser's interest under contract, whether saleable under, 346 rchaser can 9, 160 ition, 158 ortf?aoe. 157 INDEX. 401 Execution, sale under, 345, et aeq. may be completed by sheriff's successor, 350 dower not affected by, 352 vendor's interest after contract not saleable under 346 wbat may be &old under, 345 * writ of, evidence of judgment, 349 must be current to support sale, 350 Executors may discharge mortgage, when, 238, et »eq. .58 F. P.. 92 Formalities, presumption in favour of, 125 Fraudulent deeds, cancellation of, 164 Free grant lands, exempt from execution, 162 H. months, , 3.32 Heirship, recital of, 30 Husband and wife may con-- • to each other, 325 See Married Women. joinder of, may be dispensed with hv .T„dge 327 may convey interest in wife's astate" alone. 326 ^ . . .,, ®^**'« by entireties, ^.emhle, 338 328! 33T "' '''*"'" '*''' *° '°"^'^ ^'^ °^" ^°*^^««*' jer should lortgage. 346 nder, 349 kbie under. I. Identity, presumption of, 126 IncumbranceB, 135, et seq. after conveyance, purchaser must rely on covenant agamst, 139 concealment of, by vendor, entitles purchaser to rescind. 140 ' Court may receive purchase money and protect against 344 covenant against, not broken by maturing of, 141 ' TITLES — 26 402 INDEX. Incumbrances, outstanding, matter of conveyance, 137 purchaser assuming, contract should state clearly, 141 should inquire of incumbrancer, 145 need not inquire for, if no notice, 136 sale assumed to be free from, 137 Inheritance, Succession and Devise, 280, et seq. title by, 180 how proved, 281, 286 after 1852 ; 285 before 1852 ; 284 to estates pur autre vie, 286 See Personal representative. Intestacy, presumed from letters of administration, 283 proved by will not passing land, 283 J. Joint tenant, widow of, not entitled to dower, 177 Judgment does nut bind land, 154 is not a lien on a term, 160 Judges, signatures of, recognized, 112 Judicial sale, 339, et seq. purchaser at, must investigate title, 839 order of court not to be invalidated as against, 3-iO trustee buying at, 341 See Vesting Order. L. Lanes, on plan. See Way. Lateral support. See Easement. Leases, expired, need not be abstracted, 37 registration of, 65 Legal estate, holder of, selling, must also convey equitable estate, 44 mortgagor must join to convey, on sale under equitable mortgage, 376 Legitimacy and marriage, presumption of, 131, et seq. presumption of, when child born in wedlock, 131 INDEX. 403 learly, 141 nbrancer, 145 136 of title, against, 310 ate, 44 : equitable Life, death and survivorship, presumptions as to, 127 Light, easement of. See Easement. Limitations, Statute of, 259. et seq. acknowledgment, 275. et seq. effect of, 279 ineffectual after extinction 263, 277 must be in writing, 275 signed by person making, and not agent, 276 made to owner or agent, 276 need not be formal, 277 parol evidence of, may be given, 276 person making, need not know effect, 277 araa affected by, 271, e«»eg. commencement of running of, 265 entry under defective title, 274 estate not transferred by, 264 extinguishee title of true owner, 263 interrupted by taking conveyance, 279 operative only when true owner excluded and trespasser in possession, 265 vacancy does not cause to run, 265 T . , See rossession, title bt/. ■Lis pendens, 170, et seq. certificate of, must be registered, 172 discharged in certain cases, 174 improperly issued set aside, 173 doctrine of, explained, 170 purchaser subject to, takes subject to judgment, 172 what constitutes, 171 . * Local improvements, 149, et seq. taxes for, are incumbrance, 151 not now within covenant against incum- brances, 152 may have to be removed by vendor before conveyance, 152 Marketable title, 2 Marriage, publication of banns of need not be proved, 132 404 INDEX. Marriage, preaamption of, 132 how rebutted, 132 statutory proof of, 286, et seq. Married women, conveyance by, 318, et seq. defective certificates, 318, et seq. e£Foct of acts respecting, 326, et seq, joinder of husband, 325, et seq. judge's order for, 327 remainder or reversion, 336 may convey direct to husband, 325 personal representative of, 194 summary of statutes as to, 328 See Separate Estate. Mechanics' Liens, 209, et seq. area affected by, 213 arise by virtue of employment, 210 out of contract, 210 attach on land of *' owner," 210, 211, 212 and person claiming under " owner," 212 not on land exempt from execution, 213 cities, special provisions as to, in cities, 218 effect of Beg. Act on, 214 preservation of lien, 214 priority of lien, 215 fee simple may be charged by couaunt in addition to term, 211 mortgaged lands, how affected, 219 wife's interest may be bound by husband, 211 Memorials, assumed to contain material contents of deeds, 102 as primary evidence, 101 as secondary evidence, 101, 120 not records, 100 of discharged mortgages, evidence, 101 Mortgagee, production of deeds by, 98 Mortgages and incumbrances generally, 136, st seq. assignment of, in lieu of re-conveyance, 224, et seq. "mortgagor'' entitled to redeem may require, 224 Assumption of, by purchaser, 142 liability thereon, 143 consolidation of, 72 current account, 145 , et seq, 326, et seq. et seq. t36 INDEX. Mortgagea derivative, power of sale on, 377 discharge of, certificate of, evidence, 113 fluctuating sum, priority of, 146 land is fund to pay, where bought subject to, 142 payment and discharge of, 220, et »eq. power, sale under. See Potver of sale. satisfaction of, when presumed, 133 405 slaiming under •," 212 on, 213 218 jn, 214 15 in addition to d, 211 102 N. Negative evidence, 115 Notarial act or instrument, how proved, 112 Notice and priorities under Reg. Act, 80, et aeq. Act making registration, is retrospective, 82 between claimants under competing instruments, 83 registered and subsequent claimants. 81 by registration affects only persons subsequently acquiring interests, 81, 82 of unregistered instrument, 136 possession is constructive, 87 proved by registration, 82 purchaser only affected by actual, 87 subject to until registration, 62, 82 with, position ot, 88 Nullum Tempus Act in force in Ontario, 29 iq. may require, 0. Objection, particular, condition against, should state clearly, 18 purchaser must know of, in order to waive, 2 j incnrable, easily waived, 26 Official document, how proved. 111 acts, presumption as to, 127 Order of Court. See Judicial Sale. 406 INDEX. Partnership lands not subject to dower, 178 Patent, how proved, 112, 113 Payment acknowleiiged in registered instrument, 110 of purchase money, evidence of waiver, 21 Pedigree, falsification of. 39 how proved, 281 Personal representative, succession by, 289, et teq. estate of bare trustee passes to, 290 of married woman succeeds to separate estate, 294 vendor may convey, 294 trust estates pass to, 289, et $eq. See Devolution of Estates Act. Possession iirr^pfance of title, wlien, 20, 22 constructive notice only, 87 forcible, 22 not evidence of title, 5 presumed to be under rightful title, 134 under certain leases equivalent to registration, 66 taking, what amounts to, 23 title by, 259, et neq. abstract of title must be furnished on, 262 affidavit or oral evidence may be required, 260, 261 area affected by possession, 271, et seq. evidence of, should negative acknowledgment, 262 mere trespasser acquires title to that under foot, 271, et seq. owner with defective title may acquire, 274 proved by declarations, 260 purchaser may be compelled to take, 259 successive trespassers if connected in interest acquire, 266 if independent, do not acquire, 267 See Limitations, Statute of. Power of attorney, when irrevocable, 108 sale in mortgage, 353, et seq. assigns may exercise, 354 concurrence of mortgagor in sale unnecessary, 371, 376 INDEX. 407 rate eatate, 2fi0, 261 nt, 262 f foot, 271, it acquire, t acquire. 1, 376 Power of Bale, conveyance under, should recite power, 377 may operate as assignment of mortgage, 377 Dev. Est. Act, effect of, 354 does not authorize sale of timber, 370 exchanj?e valid under, 370 form and effect of, 353, et seq. how created, 353 legitimate purixjse of, to secure money, 3G9 may be exercised though mortgajje barred. 358 aftor foreclosure, 859 mortgagee with, ia not ♦.rustee, 355, 371, 374 may make sppciiil conditions on sale, 372 take mortgage for purchase money, 373 must not be exercised arbitrarily, 309 not implied except in certain cases, 358 notice of sale under, .H59, et seq. without, valid, 359 must be exercised prudently, 360 should intimate clearly its purpose, 301 be given to persons indicated in power, 361, 304 service of, how effected, 305 on personal representative, 302 stays all proceedings, 368 waiver of, 367 purchaser need not inquire into regularity of exercise, when, ."tS? sale and cunveynnce nndor, 3(19, fi neq. mortgagee may not buy at, 874 cannot treat as nullity, 376 must be bona fide, 370 second mortgagee may buy at, 375 statutory form of, 354 should not be varied, 356 exercisable on notice, 360 notice under cannot run concurrently with default, 361 Presumptions, 123, et seq. belief, take the place of, 124 deeds regular, 125 devise, acceptance of, 133 general rule as to, 124 legitimacy and marriage, 131 identity, 126 intestacy on letters of letters of administration, 134 408 INDEX. Presumption, life, death and survivorship. 127 , officials and official acts, 127 possession under rightful title, 184 rebuttal of, 125 satisfaction of mort^^af^ea, IBS things rightly done, 125 women past child-bearing, 130 Production of deeds, 93 Public documents, how proved, 112 Purchaser, interest of, under contract whether saleable under execution, 11)2 subsequent, claiming under prior registration, must be for value, 88 volunteers and, effect of registration, 89 with notice, position of, 88 Q. Quietin>< Titles Act, certificate under, is commencement of title, 28, ii R. Receipt in conveyance anfficieut, 110 for purchase money may be dispensed with, 8b Receiver, equitable execution by, 161 Recital of seisin in fee evidence thereof, 34, 109 heirship, 30 evidence between parties and privies, 122 or statements in memorials, 111 should show facts and not conclusions, 109 twenty years old evidence under V. and P. Act, 109, 123 Records, 99 copies of, must be produced by vendor, 99 deeds registered in full are not, 103 memorials are not, 100 what are, 100 INDKX. 40» T execution, Tiust be for le, 28, 44 llofjiHtorotl clouds, UV.i, ,( .<,,/. claHHilic.'itiou of, KM Hhould bo iilmtrtiotfd, ;{? inatrumt'iits, curtifi(>d copies of, 10 1 imrobiiMcr muy. but nimiot be com I'f'Ilcd to, iiccopt, lOG Ha'i.qtrar liable for no<,'lect, ('.'. KoKiMtriition, lU, ,-t xi-q. certificate of, proves d^ed, I'iCi priinii /■«<■/,• evidence only, (53 complete, wlien, 04 \ deed void for want of, t,'ood betwoon piirtios, h:-, defective, abolislied, 't\ o Hoisiii in fcp, recital of, ;{4, 100 Separate eatate, atatutory, HHO, et seq. Act of 1872 not reirospective, illll limited by Rev. Stat. 1877, 332 1884, 33.S, et seq. all land of married women now, 328, 33(i in estate by entireties, H3ti married woman may dispose of, free from Ima^ancl, yilu summary of statutes on, 338 Sheriff's deed conveys only interest sold, 351 Statntes, how proved. 111 private, do not bind parties not mentioned, 111 Streets on registered plan, 204 Succession by personal representative. See Personal liepregeuditive. Survivorship, no prcbumption of, 121), ct seq. T. Tacking, 71 Taxes, 14G, et seq. apportioned for current year between V. and P., 148 due 1st January, 1*7 not in arrear during current year, 148 registration not necessary to preserve priority of, 14G search should be made for, 147 See Local Improvements. Tenancy by curtesy, 184, et seq. definition of, 184 requisites of, 184 effect of married women'c property acts on, 181, et seq. in separate estate may be disposed of by wife, 103 entireties, how affected by Married Women's Property Acts, 330, et seq. Title, defined, 1 bad, court does not, on account of delay, compel purchaser to take, 22 Iinsband, ai") ieuiative. cts on, 18.j, ' wife, 108 Property INDEX. 411 Title, contract for good, no waiver before, 7 distinction between showing and making, ii doubtful, 3. See Doubtful Titles. limited inquiry into, different classes of contract, 8 vendor representing to be g^I on, pnrc,lui.w.r may sljow defect, 9 marketable, 2 matters of, and matters of conveyance, i'?, r.o inquiry as to, 10 representation of good title by vendor 11 no evidence of, except in vendor's possession, offect'„f <;outract possession not evidence of, 5 right to good, given by law, 5 how waived, tj, 7, 19 safe holding, 2 See Jf'aiver. Trust estate, devolution of, 289, et leq. where saleable under execution, 161 Trustees should n^t he go described in mortgage, 31 % Vendor's Jien, 168 void agciinst registered title, 168 interest after contract not saleable :mder execution, 162 Vendor and Purchaser Act, evidence under, 93, 101, 109, ,-/ i,^., 123 Vesting 01 ier, 342, «!t )(«^. jncnmbrancer's interest subject to, 311 presumed to be regular till impeached, 343 purc}.a»er not bound to accept, 342 Void deftdg, cancellation effect of registration on, 89, 165 urchaser to Waiver of right to good title, 6. ^t »,q after contract, 19 412 INDEX. fS. % Waiver of ri«lit before contract, b> contract, 7 opinion of counsel, 24 payment of purcliaso money, 21 poBBession, 20 preparation of conveyance, 24 re-sale, 28 imperfect abstract does not conclude purcliaRcr, 10 question ox fact, and intention, 7, 19 vendor r<%lying on, should act promptly, 24 Water, easement relating to. See Easement. Way. rif»ht of, 202, et seq. how limited and acquired, 202 dedication of by registered plan, 208, 204, 205 of necessity. 20(), et seq. by implied reservation, 207, 208 co-extensive with necessity, 207 defined. 20G does not arise from grantee's own act, 20G qrantee may lay out, if (grantor does not, 207 Wild land, not subjot to dower, 177 Will, ;-J04. e/ »«/. iipjiointmeiit, f-xorcise of, by, 313 attestation of. 306 vituosses must sign with intention of attesting, 307 should see signature or acknowledgment, 810 signatures of, where they should appear 308, et seq. device to witness, or husband or wife of, void, 310 execution of, 80r>, 30C, 311, et seq. married woman's, 314 obliteration or interlineation, 312 proof of, 113, 304 registration of, 316 Women past child-bearing, 130 4812 4 D jr, 19 • 17 Bting, 307 Icdgmont, 1(1 appear