Riddell, J.

1908

IN RE AARON ERB (No. 2).

which such an order might be addressed; and that the fact that there is a right of appeal apparently given upon leave obtained from a Judge of the Court of Appeal does not oust the power of this Court to grant such an order.

That certiorari will lie is indicated in Re Paquette, 11 P.R., at p. 471, and cases therein referred to. So, too, such cases as King v. Justices of Sunderland, [1901] 2 K.B. 357, furnish a valuable analogy.

And that the mere existence of a right of appeal does not oust the power of the Court to grant an order of this kind is clear from the authorities cited in Scholfield & Hill, Appeals from Justices, p. 239. The right at the common law to a writ of certiorari was absolute and ex debito justitiæ: Edwards v. Corporation of Liverpool (1902), 86 L.T. 627. In that case, after delivery of the statement of claim in an action in the Liverpool Court of Passage, the defendants applied to the Master for a writ of certiorari. The Master refused, but on appeal Mr. Justice Bucknill, on the ground that he had no discretion in the matter, reversed this decision, and this judgment was upheld by the Divisional Court, who refused leave to appeal further. The statement of counsel was as follows: "At common law certiorari lies as of right to remove the action from any inferior Court in England, and that right can only be taken away by express words in a statute." And this statement seems to be an accurate presentation of the law. For reasons which will shortly appear I need not decide as to the application of this principle to the present case.

The power of this Court to grant such relief is undoubted.

The U. C. Stat. 34 Geo. III. ch. 2, sec. 1, gave the Court of King's Bench thereby constituted and established "all such powers and authorities as by the law of England are incident to a superior Court of civil and criminal jurisdiction;" and the powers and authorities have been continued in the successors of the "Court of King's Bench for the Province of Upper Canada." See also Colonial Bank of Australia v. Willan (1874), L.R. 5 P.C. 417. But this absolute right (granting that it exists here at all) does not continue to exist after judgment. "A certiorari lies in general for the removal of all causes from inferior Courts, whether the defendant has been proceeded against therein by capias or other process:" Tidd's Practice, p. 398 of the 9th ed., 1828. "This writ may be sued out before or in some cases after judgment": ibid. But

"after judgment a certiorari does not in general lie to remove a
cause from an inferior Court; and therefore if it be returned thereon
that the defendant is condemned by judgment, he shall be re-
manded
and in cases of absolute necessity, as where the
inferior Court refuses to award execution, the Court above will
grant a certiorari after judgment, for the sake of doing justice
between the parties.
This work, which has received the
highest commendation from Lord Brougham in Earl of Glasgow v.
Hurlet & Campsie Alum Co. (1850), 3 H.L.C. 25, at p. 40 (another
and better known testimonial will occur to everyone), is a thoroughly
reliable compendium of the law as it then stood. The result is that
after judgment the order is no longer ex debito justitiæ, but a matter
of judicial discretion. The order should in general not be made
unless and until all other remedies have failed-at least all remedies
which would afford adequate relief. I think no order should issue
until after an application has been made to a Judge of the Court
of Appeal for leave to appeal. If a proper case is made no doubt
leave to appeal will be given-in a matter of such great importance
to the business world it would be well to have the question settled
unless it be too clear to require settling, as to which of course I
express here no opinion.

The application should be dismissed.

As to costs, I do not think that such a motion should have been made before applying to the proper forum for leave to appeal. The applicant will pay the costs.

This order will be without prejudice to the right of the present applicant, after the disposal of a motion to be made to a Judge of the Court of Appeal, to make a new motion before any Judge (including myself) for the relief now refused.

Riddell, J.

1908

IN RE

AARON ERB (No. 2).

A. H. F. L.

D. C. 1908

April 21.

[DIVISIONAL COURT.]

SAVEREUX V. TOURANGEAU.

Deed-Fraud-Conveyance of Same Land to Two Purchasers—Priorities—
Option Agreement Registration-Action to Remove Cloud on Title-
Leave to Amend-Parties-Grantor-Specific Performance-Terms.

By a writing under seal, but without consideration, dated the 2nd January,
1907, M. covenanted and agreed with the plaintiff that if at any time he
(M.) should be desirous of selling the land described in the document, he
would give the plaintiff the option of first chance to purchase the same at
$40 per acre, and to give the plaintiff 30 days' notice in writing of intention
to sell the property, etc. On the 14th January, 1907, M. signed a written
offer, binding for three months from the date, to sell the same land to the
defendant at a larger price. On the following day, but after the defendant
had express notice of the agreement with the plaintiff, M. executed a formal
written agreement to sell the land to the defendant, and the defendant, two
days later, paid part of the consideration named, and received from M. a
conveyance of the land. The plaintiff's agreement or option and the de-
fendant's agreement of the 15th January were both registered on the 15th
January, and the defendant's deed on the 17th January. On the 22nd
April, 1907, M. conveyed the same land to the plaintiff, and received a
payment on account from the plaintiff; this conveyance was registered on
the 24th April, 1907.

In an action to set aside the defendant's agreement of the 15th January and
the deed registered the 17th January as being void, and to remove the
same as a cloud upon the plaintiff's title, M. being brought in as a third
party:-
Held, that the writing of the 2nd January was not a mere option, but a contract
with the plaintiff to give him a binding option for 30 days after notice of
desire to sell, and, being under seal, there was no need for a consideration;
that the defendant took his agreement and conveyance subject to the rights
of the plaintiff; but that these instruments were not tainted with fraud,
and could not be declared void; as the defendant had full notice of the
agreement of the 2nd January, he was thereafter in the same position quoad
the plaintiff as M. had previously been, and was bound to do the same acts
as M. in respect of the land; and, while the plaintiff's action as framed failed,
his remedy lay in a claim for specific performance against the defendant
and M.; and he was allowed to amend, upon terms, by adding M. as a party
defendant and seeking the remedy suggested.
Judgment of Teetzel, J., reversed.

APPEAL by the defendant from the judgment of Teetzel, J., in favour of the plaintiff in an action to set aside, as fraudulent and void and as a cloud on the plaintiff's title, an agreement dated the 15th January, 1907, and registered the same day, and a deed dated the 16th January, 1907, and registered the 17th January, 1907, to the defendant, both purporting to affect part of lot 105 in the 1st concession of the township of Sandwich East, which land was conveyed to the plaintiff by one Meloche, who was also the grantor of the defendant. The plaintiff had a written option of purchase, under seal, from Meloche, dated the 2nd

January, 1907, which was registered on the 15th January, 1907, and on the 22nd April, 1907, Meloche executed a conveyance of the land to the plaintiff. Meloche was brought in by the defendant as a third party, and judgment was given by the trial Judge for the defendant for relief over against Meloche.

The facts are fully stated in the judgments.

The appeal was heard by FALCONBRIDGE, C.J.K.B., BRITTON and RIDDELL, JJ., on the 2nd March, 1908.

F. E. Hodgins, K.C., for the defendant. The action should have been dismissed, but, at all events, the judgment as entered is not in accordance with the direction of the trial Judge. The question is one of priority. Each party has a conveyance from Meloche; the defendant's was registered first; Meloche received the purchase money from both. On the 2nd January he gave

the plaintiff an option, and on the 14th he gave one to the defendant. On the 15th the defendant had notice of the first option, and on the 17th he paid $270. The plaintiff's option was registered, but it was not a contract enforceable as against the Statute of Frauds, nor a completed contract at all, and, granting that the defendant had notice of it, he is not affected by it. To satisfy the statute, the note or memorandum must shew the agreement of the parties to its terms: Leake on Contracts, 4th ed., pp. 180, 181 (5th ed., p. 182); Fry on Specific Performance, secs. 370, 506; House v. Brown (1907), 14 O.L.R. 500; Dickinson v. Dodds (1876), 2 Ch.D. 463, 472; London and South Western R.W. Co. v. Gomm (1882), 20 Ch.D. 562, 581. There is no agreement where the option is to buy or not to buy: Helby v. Matthews, [1895] A.C. 471, at p. 476. The option, if it was good, was revoked, before acceptance and before notice, by the option of the 14th January. As to the effect of the seal, see Kekewich v. Manning (1851), 1 De G.M. & G. 176, 184. The Helby case shews in what circumstances an option may be revocable. In Potter v. Sanders (1846), 6 Hare 1, there was revocation by a later option. The plaintiff's remedy, if any, after the defendant had acquired his rights and paid his money, would be specific performance, and that would be granted only on his paying his purchase money to the defendant: Weir v. Niagara Grape Co. (1886), 11 O.R. 700. The following cases shew that this position is correct: Doe

D. C.

1908

SAVEREUX

v.

TOURANGEAU

D. C. 1908

v.

TOURANGEAU

Spafford v. Breakenridge (1852), 1 C.P. 492; McLennan v. McDonald (1871), 18 Gr. 502, 508; Daniels v. Davison (1809-11), 16 Ves. SAVEREUX 249, 17 Ves. 433; Shaw v. Thackray (1853), 1 Sm. & Giff. 537; Fewster v. Turner (1842), 6 Jur. 144; Holmes v. Powell (1856), 8 De G.M. & G. 572; Joy v. Birch (1836), 4 Cl. & F. 57, 84, 85. R. F. Sutherland, K.C., for the plaintiff. The plaintiff can claim prior to registration. The defendant had notice, and the evidence shews that he was a party to the fraud practised on the plaintiff. An option under seal is not revocable: Xenos v. Wickham (1867), L.R. 2 H.L. 296; Anson on Contracts, 10th ed., p. 39; Armour on Titles, 3rd ed., p. 183, citing Ross v. Harvey (1853), 3 Gr. 649. The transaction with the defendant was in fraud of the plaintiff: Gray v. Coucher (1868), 15 Gr. 419. The deed to Tourangeau passed no title at all, because it was fraudulent ab initio: see McLennan v. McDonald, 18 Gr. 502; Latouche v. Dunsany (1803), 1 Sch. & Lef. 137, 159; Wigle v. Setterington (1872), 19 Gr. 512.

Even

Hodgins, in reply. As to the Xenos case and the effect of a seal in equity, see Pollock on Contracts, 7th ed., p. 194. where there is a seal, there must be a valuable consideration: Helby v. Matthews, [1895] A.C. 471.

April 21. BRITTON, J.-Appeal by defendant from judgment of Teetzel, J. Action tried at Sandwich.

On the 2nd January, 1907, one Alphonse Meloche and his wife were the owners of a parcel of land, part of lot 105, south of the Grand Trunk Railway, in the 1st concession of the township of Sandwich East, containing 22 15-100 acres.

On that day they entered into an agreement, in writing and under seal, with the plaintiff, by which they agreed: (1) if they were desirous of selling and intended to sell this land, they would give the plaintiff notice in writing of such intention; and (2) give the plaintiff 30 days' time within which the plaintiff could purchase; (3) and if the plaintiff wished to purchase, they would sell this land to him at $40 an acre, equal to $886 for the parcel.

It may not matter at all in this action that the plaintiff purchased another parcel from Meloche, but he made such purchase, and there were special reasons why the plaintiff wanted to buy the parcel now in question.