PARENTEAU v. HARRIS. Husband working wife's farm.-Execution.-Notice of A judgment debtor worked a farm belonging to his wife. The seed grain had been purchased partly by each. The husband paid for a portion of the threshing by his labor. He did all the work, and the horses and implements used were his. Held, That the crop belonged to the husband and could be seized under an execution against him (overruling Dubuc, J.). Upon the evidence, Held, That the plaintiff who had purchased the crop from the wife had notice of an execution against the husband prior to his purchase. PER DUBUC, J.-(In judgment appealed from). The Chattel Mortgage Act does not apply to a sale of grain in the stack when the bargain requires the vendor to thresh and afterwards deliver it. This was an interpleader issue to try the title to certain grain. L. A. Prudhomme for plaintiff. L. G. McPhillips for defendants. [24th November, 1884.] DUBUC, J.-The defendants, under an execution against the goods of Wilfrid Bissonnette, seized a certain quantity of grain which is claimed by the plaintiff. The evidence shows that the execution, dated 29th February, 1884, was placed in the sheriff's hands on the 1st of March. The seizure took place on the 27th October. Parenteau claims the grain by purchase from Bissonnette's wife, under a contract dated and executed on the 4th of October, by which Mrs. Bissonnette sells to him 250 bushels of wheat, 600 bushels of oats, 400 bushels of barley,-wheat 65 cts., oats and barley 30 cts. per bushel, for which he paid on the said 4th October $462.50 in cash in his own place in presence of two witnesses, Thibault and Bourbonnais. The agreement was signed by Bissonnette for his wife, and the money received by him. The grain had been raised on the farm of Bissonnette's wife, cultivated by Bissonnette with his own horses and implements, but the seed grain had been purchased by the wife. Bissonnette swore that he had spoken to Parenteau about the bargain, and after consulting his wife and she agreeing, he had returned to Parenteau's store and completed the bargain. The grain was at the time of sale in stack, on the wife's farm. A few days afterwards it was threshed and stored in a granary belonging to the wife, on her farm. Shortly after, about ten days after the sale, Thibault, acting for Parenteau, asked Bissonnette for the key of the granary. Bissonnette said he would give it, and he says in his evidence that he put the key in his pocket and went twice to Parenteau's store with the intention of giving him the key, but forgot it. By the agreement Bissonnette's wife had agreed to transport the grain to Parenteau's store. The said agreement after the portion of it which concerns the sale, contains the following: "I further engage myself to have the grain transported at his residence on or previous to the 24th day of October, 1884." The evidence shows that on the 23rd October, one Williams, bailiff, went to Bissonnette's place and enquired of him if he had thrashed his grain, and said he came on Harris & Son's business. This was in the forenoon. On the same afternoon Bissonnette went to Parenteau and delivered the key. The transportation of the grain to Parenteau's warehouse was also commenced on that day, and continued until the 25th. So when the grain was seized on the 27th it was then in Parenteau's warehouse. Several questions were raised on the argument. 1st. Was the grain Bissonnette's grain or his wife's? If it belonged to the wife the execution against the husband could not affect it. The counsel for defendants contended that it belonged to the husband, and cited in support of his contention Lett v. The Commercial Bank of Canada, 24 U. C. Q. B. 552. In that case the claimant was the wife herself. The goods seized were agricultural implements purchased by the husband with her money, and the crop raised on her farm, on which both were living. The said farm had been devised by her father to trustees for her separate use, with the express provision that the trustees were to lease it and pay the rent to her. The court held that in the absence of any particular agreement being proved the presumption was that the husband was tenant of the lands and the crop was his. That case is distinguishable from the present one in two particulars. In the first place, the wife was herself the claimant, while here it is a bona fide purchaser who paid the purchase price. In the second place, by the will of the claimant's father the lands were held by trustees who were to lease them and pay the rent to her. The wife was not entitled to the crop of the land, but to the rent of the same; this might have been an ingredient which induced the court to hold that the husband must be presumed to be a tenant of the farm, entitled to the crop, while his wife was only entitled to the rent. That decision was made under the Con. Stat. of U. C., c. 73. Our own Act Con. Stat. Man. c. 65, follows the Ontario Act of 1872, which is found in the Rev. Stat. of Ont., c. 125, and contains more comprehensive provisions respecting the rights of married women. Section 19 declares that the real and personal estate of married women, and the rents, issues and profits thereof shall be held and enjoyed by any married woman for her separate use, free from any estate or claim therein or thereto of her husband during her lifetine, as tenant by curtesy or otherwise, * and no possession, whether actual or constructive, of the husband, of any property, real or personal, of a married woman, shall give the husband any title thereto, as against his wife during her lifetime, nor render the same liable for his debts. * * With the distinction above referred to between the case of Lett v. The Commercial Bank and this case, and under the provisions of section 19 of our Act, I am of the opinion that the grain seized in this case was the grain of Bissonnette's wife, and could not be seized under an execution against the husband. This disposes of the issue. But to follow the arguments of counsel for defendants, and assuming that the grain belonged to the husband and was liable for his debts, it was contended on the part of the defence that, under 47 Vic. c. 19, amending 46 & 47 Vic. c. 30, S. 14, the sale by Bissonnette of the grain before it was threshed and before the charges for threshing were paid, was null and void, and passed no property. This 47 Vic. c. 19 is only a proviso to be added to s. 14 of c. 30, 46 & 47 Vic., which is an "Act respecting executions and attachments," and I have not the slightest doubt that this proviso applies only to sale by the sheriff of any growing crops, and cannot affect any sale by private parties. It was also contended by the defendants' counsel that the sale of so many bushels of grain to be delivered afterwards comes within the Bill of Sale Act, and as the grain was to remain in the vendor's possession for 20 days, it was a case for a bill of sale to be registered. In Burton v. Bellhouse, 20 U. C. Q. B. 60, two locomotives were sold by the manufacturer to the plaintiff in an half-finished state, and before they were completed they were seized under an execution against the manufacturer. It was held that the property passed and that the Chattel Mortgage Act did not apply, and change of possession being impossible under the circumstances, the execution in the sheriff's hands could not affect the plaintiff's claim as against the execution creditor. In Carruthers v. Reynolds, 12 U. C. C. P. 596, plaintiff purchased a carriage from a carriage maker-the carriage was completed, but he did not remove it immediately; at the time of sale the sheriff had an execution against the carriage maker and seized eleven days afterwards. It was held that the plaintiff having left the carriage in vendor's hands more than a reasonable time, the sale came within the provisions of the Chattel Mortgage Act. Draper, C.J., thought that had the plaintiff removed the property at the time of sale the sheriff could not have followed it. In the present case, the grain not being threshed the number of bushels were not ascertained, and it could not come under the Chattel Mortgage Act. Another ground taken was, that Parenteau knew that there was an execution against Bissonnette, and the sale was not a bona fide sale without notice and followed by a continual change of possession, and the property did not pass. Parenteau says he did not know of any execution against Bissonnette when he purchased, though he knew he had been sued by defendant. Shaw, agent of defendants, says that in April last he spoke to Parenteau about defendant's execution against Bissonnette, but does not recollect the conversation, what words passed between them. When Parenteau swears he never heard of such execution until the 23rd or 24th October, the vague statement of a mention of said execution by Shaw six months before is not sufficient, in my opinion, to constitute such a notice as to avoid the sale made in October, followed by immediate payment and delivery within a reasonable time afterwards, as it is contended by plaintiff that putting the grain in Mrs. Bissonnette's granary, awaiting the order of Parenteau, was a delivery of same. The agreement does not state that the delivery is to take place on the 24th October; but it appears as much to be an independent stipulation by the vendor to transport the grain to Parenteau's warehouse. Under Gilmour v. Supple, 11 Moo. P. C. 55, and Logan v. Lemesurier, 6 Moo. P. C. 116, I think that had the grain been destroyed by fire in Mrs. Bissonnette's granary, after its being threshed, the loss would have been Parenteau's loss. He, having chosen to purchase said grain and pay for it, while he knew it was in stacks unthreshed, it is even doubtful if he would have had any claim against Bissonnette or his wife, had the grain been destroyed before being threshed. But after it was threshed and put in the granary, and he was notified of it, I think it was a sufficient delivery to make him bear the loss if it had been destroyed there. I think that the plaintiff is entitled to a verdict. The defendants appealed. J. S. Ewart, Q. C., and L. G. McPhillips for defendants. (26th October, 1885.) TAYLOR, J., delivered the judgment of the court (a) :— This was an interpleader issue to try the question of the title to certain grain which the plaintiff claims to have bought from a Mrs. Bissonette, and which was seized under an execution recovered against her husband by the defendants. At the trial, the learned judge, who tried the cause without a jury, entered a verdict for the plaintiff, reserving leave to the defendants to move to enter a non-suit, or a verdict for them. (a) Present: Wallbridge, C.J., Dubuc and Taylor, JJ. |