Page images
PDF
EPUB

Meredith, C.J.

1908

NATIONAL

TRUST CO.

V.

SHORE.

January 21. MEREDITH, C.J.:-Action tried before me sitting without a jury at Stratford, on the 5th day of November, 1907.

The plaintiffs, claiming to be the owners of the land in question, sue to recover possession of it, alleging that the defendant occupied as a monthly tenant under them, and that his tenancy has been determined.

The defendant sets up that he is tenant for a term of five years and nine months from February 1st, 1906, under a lease to him from Margaret Gibson, that he entered into possession under the lease immediately upon its execution, and has ever since remained in possession.

The defendant also alleges that his lessor was entitled to the possession and to the receipt of the rents and profits of the land for an estate for life of the land, and that the lease was made pursuant to the provisions of and the powers conferred by the Settled Estates Act, R.S.O. 1897, ch. 71, and was registered in the proper registry office as required by the Act; and he claims to be entitled to hold the land under his lease during the remainder of the term, notwithstanding that the lessor has since died.

Both parties claim under the will of Henry Gibson, who was owner of the land at the time of his death, which occurred on December 1st, 1897.

By his will, which bears date June 22nd, 1896, Henry Gibson devised all his real estate, except parts of it specifically devised, which do not include the land in question, to his executors and executrix on (among other trusts) the following:

"(g) To allow my wife so long as she remains my widow and no longer the use and occupation and the rents, issues and profits of the remainder of my real estate for her own use absolutely."

And he directed that upon his wife again intermarrying, or upon her death, whichever should first happen, the real estate devised to her during her widowhood should be sold, and the proceeds of the sale be divided among his children then surviving in equal shares, with a provision that the issue of any child which should have died before the period of distribution should take the share which the deceased child if living would have taken.

The lease to the defendant bears date January 26th, 1906, and contains a covenant on the part of the lessor for a renewal for a

further term of five years from the expiration of the term granted, Meredith, C.J but no reference is made in it to the Settled Estates Act.

1908

NATIONAL

ย.

SHORE.

The lessor Margaret Gibson died on April 21st, 1906, and the surviving executors, under the powers conferred upon them by the TRUST CO. will, sold, and on February 5th, 1907, conveyed, with other lands, the land in question to Robert Spelman Robertson; and Robertson, on March 1st, 1907, conveyed the same lands to the Canadian Bank of Commerce; and the bank on the same day conveyed them to the plaintiffs; and the conveyances were registered on March 11th, 1907, except that to the plaintiffs, which was registered on the 23rd of that month.

The defendant's lease was registered on December 1st, 1906, and after the death of Margaret Gibson the defendant continued to occupy the land.

No confirmation of the lease was executed by the executors, but they received from the defendant the monthly rent reserved. by the lease after the death of Margaret Gibson until the land was sold by them.

Robertson, the Canadian Bank of Commerce, and the plaintiffs, when they respectively acquired the land, did so with actual knowledge of the lease to the defendant and of his possession under it.

The land was erroneously described in the lease as being part of lot H in the Canada Company's survey, though it in fact forms part also of lot I. This error is unimportant, as the lease contains a description sufficient to pass the land intended to be leased, which is described as "being now occupied by the lessee as a boot and shoe store, together with the cellar underneath the said store," and the erroneous description may therefore be rejected as falsa demonstratio.

The validity of the lease as one having effect under the provisions of secs. 42 and 43 of the Settled Estates Act, R.S.O. 1897, ch. 71, is attacked by the plaintiffs on three grounds:

(1) That the land was not a settled estate within the meaning of the Act;

(2) That Margaret Gibson was not a person who under the provisions of sec. 42 was entitled to exercise the powers conferred by that section; in other words, that she was not "a person entitled to the possession or to the receipt of the rents and profits" of the demised premises for an estate for any life, or for a term of years determinable with any life or lives, or for any greater estate;

Meredith, C.J.

1908 NATIONAL

TRUST Co.

v.

SHORE.

(3) That the lease did not take effect until December 1st, 1906, the date of its registration, and that the payment of the monthly rent to the executors created a new monthly tenancy between them and the defendant, and that the existence of this new tenancy prevented the lease from ever becoming operative so as to be binding on the persons entitled to estates subsequent to the estate of the lessor under the will.

Settled estates are defined-sec. 2 (2)—to be "hereditaments of any tenure, and all estates or interests in any such hereditaments, which are the subject of a settlement"; and a settlement is defined— sec. 2 (1) to be "any Act of Parliament, deed, agreement, will or other instrument, or any number of such instruments, under or by virtue of which any hereditaments of any tenure or any estates or interests in any such hereditaments stand limited to or in trust for any persons by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively.”

That the land is a settled estate within the meaning of the Act appears to be clear: In re Morgan's Settled Estate (1870), L.R. 9 Eq. 587; Carlyon v. Truscott (1875), L.R. 20 Eq. 348; In re Cornell (1905), 9 O.L.R. 128.

That the lessor of the defendant was such a person as is entitled under the provisions of sec. 42 to exercise the power of leasing conferred by that section is not open to serious question, for an estate during widowhood is an estate for life, and as perfect an estate for life until the event upon which it is to terminate takes place as if it had been granted absolutely: Co. Litt. 42a; Woodfall's Landlord and Tenant, 16th ed., pp. 154-5; Armour on Real Property, pp. 106-7; Re Carne's Settled Estates, [1898] 1 Ch. 324.

Section 32, relied on by the plaintiffs, which provides that leases "executed in pursuance of the exercise of any of the powers conferred by" the Act "shall not take effect until registered in the proper registry or land titles office where the lands are situate," and that the lease or duplicate to be registered shall be executed by the lessee as well as the lessor, does not, I think, help the plaintiffs.

The purpose of the enactment is made more clear on reference to sec. 33 of the English Act (40-41 Vict. ch. 18), which shews that the requirements of that section were intended to guard against fraud or mistake.

1908

NATIONAL TRUST CO. v.

SHORE.

The lease to the defendant was registered after the death of the Meredith, C.J. widow, but before the land was sold by the executors, and in my opinion when registered it took effect, notwithstanding the payment of rent in the meantime by the defendant to the executors. I see no reason, and none was suggested in argument, why the delay in registration and the payment of rent to the executors, the rights of a bonâ fide purchaser for value without notice not having intervened, should have the effect of destroying the lease so far as it affected the interests of the persons entitled in remainder. If the contention of the plaintiffs' counsel were well founded, had the widow died on the day following the execution of the lease and before it was registered, it would seem to follow that the lease could never have taken effect under the Act. The provision as to registration is somewhat analogous to that of the statute of 27 Hen. VIII. ch. 16, as to the enrolment of deeds of bargain and sale, and the purpose of the two enactments was similar.

In Vaughan ex dem. Atkins v. Atkins (1771), 5 Burr. 2764, delivering the judgment of the Court, Lord Mansfield said, at p. 2787: "There is no rule better grounded in law, reason and convenience than this, 'that all the several parts and ceremonies necessary to complete a conveyance shall be taken together as one act; and operate from the substantial part, by relation.' Livery relates to seisin, inrollment to the bargain and sale, a recovery to the deed which leads the use; so admittance shall relate to the surrender, especially when it is a sale for valuable consideration, as in this case."

The rule quoted by Lord Mansfield was applied in this Province in an early case: Doe ex dem. Spafford v. Brown (1833), 3 O.S. 90.

The language of sec. 32 differs in some respects from that of the statute of Henry VIII. The latter enacts that "no lands, manors, tenements or other hereditaments shall pass, alter or change from one to another, whereby any estate of inheritance or freehold shall be made or take effect in any person or persons, or any use thereof to be made, by reason only of any bargain and sale thereof, except the same bargain and sale be made by writing indented, sealed and enrolled" in the manner prescribed by the Act within six months next after its date; while the provision of sec. 32 of R.S.O. 1897, ch. 71, is that the lease shall not take effect until registered. The meaning of this cannot, I think, be that no effect whatever is to be

1908

NATIONAL TRUST CO.

V.

Meredith, C.J. given to the lease until it is registered, but that effect under the Act does not attach to it until it is registered, and there is no reason why when the registration takes place the lease should not operate from its execution, the substantial part,-by relation. However, if this be not so, as I have said, I see no reason why in the circumstances of this case the lease did not when registered take effect under the Act and become valid against all other persons entitled to estates subsequent to the estate of the widow under the settlement: sec. 43.

SHORE.

If, however, I am wrong in my view as to the third objection, the provisions of sec. 24 of R.S.O. 1897, ch. 330, afford a complete answer to the objection.

The section is as follows:

"24. Where in the intended exercise of any power of leasing, whether derived under a statute, or under any instrument

[ocr errors]

a lease has been, or shall hereafter be granted, which is, by reason
of the non-observance or omission of some condition or restriction,
or by reason of any other deviation from the terms of such power,
invalid as against the person entitled, after the determination of
the interest of the person granting such lease, to the reversion, or
against other the person who, subject to any lease lawfully granted
under such power, would have been entitled to the hereditaments
comprised in such lease, such lease, in case the same have been
made bonâ fide, and the lessee named therein, his heirs
have entered thereunder, shall be considered in equity as a contract
for a grant at the request of the lessee, his heirs
of a
valid lease under such power, to the like purport and effect as such
invalid lease as aforesaid, save so far as any variation may be
necessary in order to comply with the terms of such power; and all
persons who would have been bound by a lease lawfully granted
under such power shall be bound in equity by such contract.

"Provided . "

[ocr errors]
[ocr errors]
[ocr errors]

If the lease in question is invalid as a lease having effect under the provisions of secs. 42 and 43 for the reasons urged in the objection, the section quoted, in my opinion, applies, and makes the lease a good contract for a valid lease under the power conferred by sec. 42 of the Settled Estates Act, binding upon the plaintiffs in equity, and possession under it is a sufficient answer to the action:

« EelmineJätka »