Taylor v. Wallbridge

Taylor v. Wallbridge
Collection
Supreme Court Judgments
Date
1879-04-15
Report
(1879) 2 SCR 616
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar
On appeal from
Ontario
Subjects
Agency
Decision Content
Supreme Court of Canada
Taylor v. Wallbridge, (1879) 2 S.C.R. 616
Date: 1879-04-15
William Johnson Taylor (Plaintiff) Appellant;
and
Adam Henry Wallbridge (Defendant) Respondent.
1879: January 21, 22; 1879: April 15.
Present: Ritchie, C.J., and Strong, Fournier, Henry and Taschereau, J.J.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Principal and Agent—Trustee and cestui que Trust—Laches.
In 1847, the Plaintiff, W.J.T., before leaving Canada, conveyed certain lands, in which he had an interest as assignee of a contract to purchase, to his brother, G.T., one of the Defendants.
In April, 1851, G.T., in anticipation of a suit which was afterwards brought by one C. against W.J.T. in relation to the lands in question, without the knowledge of his brother, re‑assigned the property to him, and having paid the balance of the purchase money, a deed of the lot issued at G.T.’s request to W.J.T., as such assignee. In October following a power of attorney was sent to, and executed by, W.J.T., who was then in California, in favor of G.T., to enable him (G.T.) to “sell the land in question, and to sell or lease any other lands he owned in Canada.”
In 1856, G.T. conveyed the property to W., the Respondent, who had acted as solicitor for W.J.T., and had full means of knowing G.T.’s position and powers, for an alleged consideration of $1000, and W. immediately reconveyed to G.T. one-half of the land for an alleged consideration of $200. In 1873, W.J.T. returned to Canada, and in January, 1874, filed a bill impeaching the transactions between his brother and W., seeking to have them declared trustees for him.
Held,—(Reversing the judgment of the Court of Error and Appeal and affirming the decree of Vice-Chancellor Proudfoot, Strong J., dissenting,) that W.J.T. was the owner of the lands in question, that he had not been debarred by laches or acquiescence from succeeding in the present suit, and that the transactions between G.T. and W. should be set aside.
APPEAL to the Supreme Court of Canada from a judgment of the Court of Appeal for the Province of Ontario, affirming an order of the Court of Chancery of Ontario, dated 2nd February, 1876, in a cause in the said Court of Chancery between William Johnson Taylor (Appellant) Plaintiff, and George Taylor, Adam Henry Wallbridge (Respondent), and George Simpson, Defendants.
In this case Plaintiff’s bill sets forth: that in 1851 he was seized in fee simple, or well entitled to the north half of lot No. 8, in the 2nd Concession of the Township of Thurlow, and being out of Canada, he executed a power of attorney to George Taylor, dated 11th October, 1851, authorizing him “to sell all” the said land, as also to act as his attorney “in the sale or leasing of any lands of which” he was the owner in the Province of Canada, known as Canada West; that in the year 1856 one Joseph Canniff exhibited his bill of complaint in the Court of Chancery against Plaintiff, which Plaintiff believed alleged that Canniff had some estate, &c., in the said lands, and registered under said bill a lis pendens against said lands, and George Taylor, as such attorney and agent of Plaintiff, defended against said bill by Lewis Wallbridge and Adam Henry Wallbridge, co-partners and practicing solicitors; that under the said power George Taylor pretended to convey by indenture of grant, dated 29th December, 1856, the said land to Defendant Wallbridge, for the expressed consideration of $1,000, and said Wallbridge, by indenture of even date, conveyed back to George Taylor one half of the same, viz: the north seventeen acres and the south thirty-three acres of the said north half of said lot, for the expressed consideration of $200.
That Plaintiff left Upper Canada before 1851, and remained out of Canada continuously until October, 1873, when, for the first time, he returned to Canada; that the said power of attorney was executed by him in California and sent to George Taylor to enable him to act as trustee and agent for Plaintiff in the management and sale of the lands and premises therein mentioned. That the conveyance to Defendant Wallbridge, and the conveyance back to George Taylor, were “made in pursuance of a colorable and collusive agreement and understanding between the Defendants, to defraud Plaintiff out of said lands and to divide the same between the Defendants, both of whom at the time held a fiduciary position towards the Plaintiff—the one as agent and the other as solicitor.” That Defendants had, since the said pretended conveyances, bargained, sold and conveyed some portions of said lands to different parties, all which, so far as the abstract title of the said lot in the Registry Office showed (and Complainant had no knowledge of any other sales or conveyances thereof), Plaintiff was willing, and offered, to confirm the same. That Defendants had received and appropriated to their own use divers large sums of money, the proceeds of such sales, and neglected and refused to account to Plaintiff therefor and to pay same over to him.
That since Plaintiff’s return to Ontario, George Taylor, as Plaintiff was informed and believed, executed, without any consideration whatever, an indenture of grant of part of said lands to George Simpson for his natural life, and Plaintiff alleged that the said George Simpson, before the execution of the said indenture, was well aware, or had actual notice of Plaintiff’s rights and interests in said land; and Plaintiff submitted that said power of attorney did not warrant and empower Defendant, George Taylor, to grant, convey, and lease said lands to Adam Henry Wallbridge and George Simpson, and that the pretended consideration mentioned in the deed to Adam Henry Wallbridge, if paid at all, which Plaintiff denied, was grossly inadequate to the value of the said north half of the said lot; and Plaintiff prayed:— 1. That the Defendants might be declared Trustees for him of the said lands, premises and moneys.
2. That an account might be taken of the parcels or portions of the said lands and premises sold or conveyed, or leased, as aforesaid, and of the moneys which they received or ought to have received therefor.
3. That they might be ordered to convey and assure, by proper assurances with all necessary parties, the remaining or unsold portions of the said lands and premises to the Complainant.
4. That the Defendants might be ordered to account to Complainant for the moneys received by them, or either of them, or which should have been received by them, or either of them, for the said parcels or portions of said half lot so sold and conveyed, and for the rents, issues and profits which they received or ought to have received from the said lands and premises, with interest.
The Defendant George Taylor, in his answer, after setting forth that his mother purchased the said lands from King’s College, and her connection with the said lands, states that she afterwards assigned her interest in said lands to him, in consideration of which he paid her the sum of $50, and that afterwards, in the year 1851, he assigned his interest in the said lands to the Plaintiff, setting forth the circumstances under which he alleges this was done.
He admits receiving the power of attorney.
He admits the suit by Canniff against Plaintiff, in whose name the title to said lands then stood, but alleges that he defended it, not as attorney and agent for Plaintiff, but on his own behalf, as the person beneficially entitled to said lands.
He alleges that the conveyances from himself to Adam Henry Wallbridge, and from Adam Henry Wallbridge to himself, were made immediately after the determination of that suit, in pursuance of an agreement previously entered into between his Solicitor, Adam Henry Wallbridge, and himself, the particulars of which he sets out.
He denies collusive agreement with Defendants to defraud Plaintiff of lands; admits that he has sold certain portions of the lands and received the purchase money; that about 15 years ago he did agree to give Defendant Geo. Simpson, his and Plaintiff’s uncle, a life lease of about 15 acres of land in consideration of a nominal rent, and he then entered into possession, and that he, George Taylor, has since executed a life lease to him.
Has always believed that Plaintiff had no title and never had any to said lands, except under the deed from the King’s College to him, which, he submits, gave Plaintiff no beneficial interest in lands, but merely made him a trustee of the legal estate for him, George Taylor, and he submits that the legal estate was properly conveyed by him, as Plaintiff’s attorney, to Defendant Adam Henry Wallbridge, but if it should be held that the legal estate did not pass to Adam Henry Wallbridge by said conveyance, and the same still remains in Plaintiff, he submits that Plaintiff ought to be declared a trustee of the legal estate for him, and ordered to convey the same to him by a good and sufficient deed. George Taylor further submits that he is a purchaser for value, and contends that Plaintiff never paid anything, and would never have had any claim had he, George Taylor, not taken the deed from King’s College in his name.
He further submits that in any event he is entitled to a lien on said lands for the purchase money so paid by him.
Adam Henry Wallbridge, by his answer, after setting forth the result of inquiries as to the land before the same came to Jane Taylor, says: That said Jane Taylor, on 3rd March, 1832, contracted in her own name with the Chancellor, President, and scholars of King’s College, for the absolute purchase thereof in her own proper name.
That on the 26th Nov., 1839, Jane Taylor assigned the contract of purchase to Defendant, George Taylor; on the 30th October, 1841, George Taylor assigned the same to Plaintiff; on the 9th November, 1847, Plaintiff assigned same to George Taylor; on 12th April, 1851, George Taylor assigned same to Plaintiff; on or about the said month of April, 1841, a deed was issued by King’s College in the name of Plaintiff, William Taylor.
That he, Adam Henry Wallbridge, furnished the money to pay the amount due the college, and the same was transmitted to Toronto, in the name of George Taylor, with instructions to have the deed made out in Plaintiff’s name.
That before the time of the last mentioned transfer to Plaintiff, he had left Canada for the purpose of going to California, and he remained away from Canada until some time during last year.
Submits that Plaintiff could not have known, except by report or letter, that the land had been so transferred in his name, and he paid nothing to the college for the land.
Submits that the land, notwithstanding the title stood in the name of Plaintiff, was, in fact, the property of George Taylor, and that Plaintiff never, until within a short time, so far as he knows, or has been informed, set up any title thereto, or in any way claimed the same on the contrary, Plaintiff, shortly after deed was made to him by the College, transmitted to George Taylor the power of attorney to enable Defendant, George Taylor, to dispose of the land.
Submits that land was the property of George Taylor and not of Plaintiff, but stood in Plaintiff’s name, with- out the Plaintiff’s knowledge until informed, &c., and that Plaintiff was trustee for George Taylor, or of himself, Adam Henry Wallbridge, who paid the money.
That he received a deed from George Taylor, executed under said power of attorney, for good and valuable consideration paid by him therefor, and he claims to be an innocent purchaser for value, and denies collusion or intention to defraud charged in bill.
That George Taylor and he have been in possession of land 20 years and upwards; and he claims the benefit of the statute of limitations. That Plaintiff has acquiesced in his title by lapse of time and otherwise, and he is estopped from denying the title given under the power of attorney.
That the title is a registered title, and the deed under the power of attorney is also registered, and he claims the benefit of the registry laws. That he has sold part of the land to one John Hyslop and M. Thompson, who are interested in the suit and necessary parties.
Submits, if any secret trust or understanding between Plaintiff and George Taylor, he is not chargeable therewith or thereby, as he received his deed under the authority given by Plaintiff and without notice of any trust.
The following exhibits were fyled in the suit:—
EXHIBIT “P.”
Letter from W.J. Taylor to the Bursar of King’s College, 28th November, 1842, as follows:
“Belleville, 28th November, 1842.
“SIR,—I have become the purchaser of north half of Lot No. 8, in the 2nd concession of Thurlow, from Jane Taylor, the original purchaser thereof from King’s College. I am now able to pay £25, which I will do if I can secure such terms as will enable me ultimately to own the lot. I wish to know the longest time you can give me for the payment of the balance, and whether the deed can come out in my name upon producing the assignment from George Taylor to me.
“Your obedient servant,
“WILLIAM JOHNSON TAYLOR,
“By his Agent, L. Wallbridge.”
“Please address W.J. Taylor, Belleville.”
“Are U.E. rights taken in payment? If so, I can pay down.”
“W.J. TAYLOR.”
Address: “H. Boys, Esq., Bursar King’s College, Toronto.”
Receipt, dated 7th July, 1853, and signed by G. Taylor and A.H. Wallbridge, for £90 5s. on account of purchase money of half lot 8, which, he alleges, he agreed to sell him for £215, Wallbridge to bear half expense of the suit now going on respecting said half lot in Court of Chancery and Queen’s Bench, the remaining five hundred dollars to be paid this fall. If suit in Chancery does not terminate successfully, then each party to sustain half the loss, and Wallbridge is not then to pay the $500.
EXHIBIT “R.”
Receipt to George Taylor, as follows:—
“UNIVERSITY OFFICE,”
“Toronto, April 14, 1851.
“Received from George Taylor, the sum of one hundred and forty-three pounds seven shillings and a penny currency, in payment of the following sum due to the University of Toronto, on the north half lot 8, second concession of Thurlow.
Balance of principal
£60
0
0
do. of interest
68
10
0
Costs
14
16
4
Postage
9
£143
7
1
“ALAN CAMERON,
“Bursar, University.” EXHIBIT “S.”
Receipt to George Taylor, as follows:
“UNIVERSITY OFFICE,
“Toronto, April 24th, 1851.
“Received from George Taylor, the sum of two pounds fifteen shillings currency, in payment of the following sum due to the University of Toronto, on north half lot eight, second concession of Thurlow.
Fee for Deed
£
15
0
Assignment of Registry
2
0
0
£2
15
0
“ALAN CAMERON,
“Bursar, University.”
EXHIBIT “T.”
Letter of receipt to George Taylor, as follows:
“UNIVERSITY OFFICE,
“Toronto, April 15th, 1851.
“SIR,—I enclose a receipt for your remittance by cheque on Commercial Bank of £143 7s 1d in full of purchase money, &c., of the north half lot No. 8, second concession of Thurlow. The deed will be made out and forwarded to William Johnson Taylor as soon as possible on receipt of fee of fifteen shillings for the deed, and £2 0 0 for registering four assignments.
“I am, sir, your obedient servant,
“ALAN CAMERON,”
“Bursar.”
John Taylor, father of William and John, was original lessee of land from the Crown. Lease expired in 1826.
John Taylor died, leaving a will by which he nominated his wife, Jane Taylor, his executrix, and his son John his executor. The will is dated 14th December, 1824.
John Taylor, the son, died, leaving Jane Taylor, his mother, surviving him. In March, 1832, Jane Taylor paid the rent then in arrear. On the 3rd March, 1832, she, while executrix, contracted in her own name with the Chancellor, &c., of King’s College to whom land had been transferred, for the absolute purchase thereof in her own name. On the 26th November, 1839, Jane assigned this contract of purchase to Defendant George Taylor. On 30th October, 1841, George Taylor assigned same to Plaintiff William J. Taylor. On the 9th November, 1847, William assigned same to George Taylor. On the 12th April, 1851, George assigned same to William. On the 24th April, 1851, King’s College deeded same to William Taylor. On 11th October, 1851, William sent George a power of attorney in these words:
“Know all men by these presents, that I, William Johnson Taylor, at present of Carson’s Creek, County of Calaveras, State of California, United States of America, but formerly a resident of Kingston, in that part of Her Britannic Majesty’s Dominion, known as Canada West, hath made, constituted and appointed, and by these presents, doth make, constitute and appoint George Taylor, of Belleville, in that part of Her Britannic Majesty’s Dominion, known as Canada West, my true and lawful Attorney for me, and in my name and behalf to sell all that certain tract or parcel of land, known as lot number eight, second concession of the Township of Thurlow, in the Victoria District and Province of Canada, aforesaid. As also to act as my Attorney in the sale or leasing of any lands of which I am the owner in the said Province of Canada, aforesaid. Hereby ratifying and confirming the act or acts of my said Attorney.
“In witness whereof, I have hereunto set my hand and seal at Carson’s Creek, as aforesaid, this eleventh day of October, one thousand eight hundred any fifty-one.
“Signed and Sealed in presence of.
“(Signed) J. ALDHAM KYLE.
“(Signed) WM. J. TAYLOR.” On 29th December, 1856, William, by his attorney, George, in consideration of £250 sells and conveys to Adam Henry Wallbridge the land in dispute—north ½ of lot 8. On the 29th December, 1856, Adam Henry Wallbridge, in consideration of £50, sells and conveys to George Taylor the north 17 acres and the south 33 acres of the north ½ of lot 8.
The following exhibits also were fyled in the suit:—
Answer of William J. Taylor, dated 22nd November, 1852, in chancery suit of Canniff v. Taylor, and sworn to by George Taylor.
Affidavit on production, made by George Taylor in same suit, dated 30th June, 1853.
Copy of decree in same suit, dated 13th June, 1856.
Deposition taken vivâ voce of George Taylor in suit of Canniff v. Taylor, 15th May, 1856, and also depositions of J.W.D. Moodie and T.J.W. Myers in same suit.
Judgment roll in ejectment in suit of Doe v. Fairman, on verdict for Plaintiff; William Taylor comes into Court; possession prayed for and granted.
The other material facts of the case and the evidence relating to the transfer of the lot in question by the King’s College, are hereafter given at length in the judgment of the Chief Justice.
The case came on for examination of witnesses and hearing before Vice-Chancellor Proudfoot at Belleville, on the 10th day of November, 1874, and the Court gave a decree in favor of the Plaintiff.
The cause then came on before the Court of Chancery by way of re-hearing, and on the 2nd February, 1876, the Court made the following order:
“1. This Court doth order that the said decree be and the same hereby is reversed as against the said Defendant, Adam Henry Wallbridge, with costs of such re-hearing to be paid by the Plaintiff to the said Defendant forthwith after taxation thereof.
2. This Court doth further order that the Plaintiff’s bill of complaint be and the same is hereby dismissed out of this Court as against the Defendant Adam Henry Wallbridge, with costs to be paid by the said Plaintiff to the said Defendant forthwith after taxation thereof.
3. And this Court doth further order that the deposit in Court of forty dollars, paid in by the Defendant, be forthwith paid out to him.
4. And this Court doth further order that the Plaintiff do forthwith repay to the said Defendant Adam Henry Wallbridge, any amount which the said Defendant may have paid to him on account of the costs of this suit, or otherwise under the said decree payable by the said Defendant to the Plaintiff.
On appeal to the Court of Appeal for Ontario, this order was affirmed with costs.
Mr. Bethune, Q.C., and Mr. George D. Dickson, for Appellant:—
The beneficial property was in William Johnson Taylor; and Vice-Chancellor Proudfoot, who saw the Plaintiff, the Defendant George Taylor, and the Defendant Wallbridge, all of whom were examined before him as witnesses, and the evidence of all of whom is most material, was in a better position to form a judgment upon the facts than the majority of the Court of Appeal in Ontario, and the latter Court should not have disturbed the finding of the Court of first instance upon the facts.
The evidence shows that prior to the 28th November, 1842, the Plaintiff had purchased the land from the Defendant, George Taylor, and on the 28th November, 1842, applied to King’s College to have his purchase recognised, and this was done. In 1847 the Plaintiff expected to go to California, and to enable the Defendant George Taylor to procure the deed from King’s College, and to manage the property for Plaintiff, conveyed the property to him. After the execution of the conveyance, a Bill was filed in Chancery against the plaintiff by Joseph Canniff, setting up an agreement to sell the land to Canniff, and charging that the transfer by the Defendant George Taylor to the Plaintiff was in fraud of this agreement, and asking for specific performance of it. The Defendant George Taylor answered this Bill in the name of and as the agent of the Plaintiff; and, in the answer, states in substance that he applied for and got the conveyance as agent for the Plaintiff, and the transfer to the Plaintiff were bonâ fide and for consideration. The Defendant George Taylor, who is the Sheriff of the County of Hastings, has been ill for a number of years, and his memory has become impaired; but in 1856 was in perfect mental health, and was examined as a witness in the suit of Canniff v. Taylor. On the occasion of his examination in that suit he swore in the most positive terms that he had no interest in the suit if the Plaintiff was then alive, and that he assigned the land to the Plaintiff—that this was bonâ fide, and not to avoid payment of the claims of creditors.
It is alleged by Respondents that the conveyance to Wallbridge was executed in pursuance of the bargain contained in the receipt of the 7th July, 1853, signed by A.H. Wallbridge. But such a bargain was not within the scope of the agent’s power. It was substantially a bargain, as carried out, to divide the property between the Defendant Wallbridge and the Defendant George Taylor; and the power of attorney set out in Plaintiff’s bill was obtained from him under the pretext of being required to enable the Defendant George Taylor to manage the Plaintiff’s property in Canada, but in reality for the express purpose of enabling the Defendants Wallbridge and Taylor to divide the Plaintiff’s land between them, and carry out the fraudulent scheme they had conceived.
The power of attorney was given by the Plaintiff to the Defendant George Taylor in 1851, and it was under this power of attorney that the land was conveyed to Defendant Wallbridge, who re-conveyed half of it to the Defendant George Taylor. At the time of the suit of Canniff v. Taylor, the Defendant Wallbridge was solicitor for the Plaintiff, and he cannot be a purchaser for value without notice, and to hold that Defendant Taylor was the beneficial owner, would be to enable them to profit by their own fraud.
There was no resulting trust here. This was not the case of a purchase by a stranger in the name of a trustee. This was a purchase by an agent in the name of his principal, and he cannot be heard against the principal to say that it was otherwise. In such a case the presumption of a resulting trust does not arise. The payment here was not proved to have been made with the money of George Taylor.
If the assignment was made by the Defendant George Taylor, intending to vest the property in the Plaintiff, then the purchase would be intended to have been completed for the benefit of the Plaintiff, and there would be no resulting trust. There is in the evidence no intimation made to the College that in any sense the purchase was intended to have been made for the benefit of George Taylor.
The Defendants cannot either defend under the statute of limitations, because they took possession in the Plaintiff’s name in 1856, under the ejectment which George Taylor had obtained against Canniff.
No delay can be imputed to the Plaintiff until his return, and he filed his bill promptly thereafter. The learned counsel relied upon the following cases and authorities:
Greenwood v. The Commercial Bank[1]; Brown v. Smart[2]; Marquis of Clanricarde v. Hennesy[3]; Lewis v. Thomas[4]; Sturges v. Morse[5]; In re Butler’s Estate[6]; Blair v. Brownley[7]; Brown on Limitations[8]; Cole v. Lease[9]; Dart on Vendors[10].
Mr. Fitzgerald, Q.C., for Respondent:—
It must be admitted that at one time, viz., in 1847, the Appellant conveyed his whole estate and interest in the lands in question to George Taylor. The consideration of £150, named in the conveyance of the 29th November, 1847, is to be presumed to have been paid by George, and thenceforward George was and continued to be the beneficial owner of the property in dispute. There is no evidence that the Appellant provided any part of the purchase money paid to the College, nor was it shown that George paid it by way of a loan to him, and the consideration of 5s., named in the transfer from George to William, dated 12th April, 1851, was only nominal.
Upon reading all documents, it is clear that George was the owner, and that when George, without William’s knowledge, got the deed issued in William’s name, William became a bare trustee for George by the principle of resulting trust.
There must be evidence to rebut the presumption of law giving rise to the resulting trust; Lewin on Trusts[11]. The evidence of George Taylor in the Canniff v. Taylor suit, relied on by the Appellant here, does not do so. The conveyance to William was a contrivance at the time which was honest to defeat Canniff, and George’s statement in that evidence that he had no interest in that suit must be considered in the light of all the surrounding circumstances and the evidence in this case—and is, after all, only “evidence,” and does not in any view amount to “estoppel.” The meaning that must be attached to it is only that he had put himself in his brother’s power as to this land by the conveyance of 12th April, 1851, and taking the University deed in his name, that his brother William had control of the property till he got some instrument giving that control back to him (George), and that he had done so under legal advice and was speaking of the conveyances according to the advice he had received as to their operation. It must be assumed on the evidence that George promptly communicated what he had done to William who had no previous knowledge thereof, and asked him for the power of attorney, and that William assented. The return of the power of attorney from California in October, 1851, having regard to the length of time then required for communicating with a person there, supports this view. Were it otherwise the Appellant could have shown it to be so. Washburn v. Ferris[12].
George Taylor, being then the beneficial owner of the land, it was only necessary that he should obtain from the Appellant the power of attorney of October, 1851, which he did obtain, to enable him to deal with it for his own use. That power of attorney is sufficient in point of form to support the conveyance to Wallbridge of 1856.
In 1856, George Taylor, as equitable and beneficial owner, and also as the duly constituted attorney of William, in whom was the legal estate, was then competent to and did give a valid title to the said lands to Wallbridge, and Wallbridge did thereby acquire a valid title in fee simple to one half of the said lands, viz., 50 acres.
Even if William was at the time of the sale and conveyance to Wallbridge the owner of the said lands, yet by virtue of the said power of attorney he gave to George Taylor full power to sell and convey the said 50 acres to Wallbridge in fee simple in the manner in which he did sell and convey the same to said Wallbridge, and William is now estopped from denying Wallbridge’s title to the said 50 acres, and if there were any doubt the court would now order a conveyance from William, the trustee of the legal estate.
The evidence, moreover, shows that Wallbridge was a purchaser bonâ fide for value, without notice of any defect in the title of George.
As to Wallbridge being incapacitated from buying, the rule seems to be that the onus is cast upon the solicitor to prove that he paid full value, and the evidence shows that he did pay full value, for he only bought one half.
In any event the laches and acquiescence of the Appellant disentitle him to any relief as against Wallbridge, and by analogy to the rule under 25 Vic., c. 20, the absence of a Plaintiff from the country will not enable him in a Court of Equity to open up the transaction in question after so long a time, viz., 21 years after it took place, and 26 years after the Plaintiff left the country.
The Respondent relies also on the Statutes of Limitations as a complete bar to Plaintiff’s claim.
After such a lapse of time the onus is upon the Appellant to establish his case beyond all reasonable doubt, and this he has plainly failed to do, and in con- sidering a decision on an appeal, as in this case, the Higher Court will not interfere unless they are perfectly satisfied that the decision of the subordinate Court of Appeal is wrong.
Per Lord Wensleydale, Mayor of Beverley v. The Attorney-General[13].
Mr. Bethune, Q.C., in reply:—
On 27th November, 1856, we have an order of the Court of Queen’s Bench granting possession to the Appellant of the land in question, and any possession prior to that date cannot be invoked by Respondents.
The evidence, moreover, does not clearly prove that George did not pay the University with William’s money, for we know that George had money the moment he exercised his power of selling William’s lands. It is not a case where the evidence is clear and distinct as in Washburn v. Ferris[14]. As to a resulting trust, see Perry on Trusts[15]. There is only evidence of £20 consideration paid by Wallbridge. It is not a fair consideration, as he admits the property to be worth £215. The evidence in the suit of Canniff v. Taylor is conclusive, for the issue then was the same as at the present time; was there any interest in George then?
THE CHIEF JUSTICE, after stating the facts of the case, hereinbefore set out, proceeded as follows:
The Plaintiff relied on his documentary title, and Defendant claimed that the land was George Taylor’s, held by William for him; and, if not George’s, then the sale and conveyance by William, by his Attorney George, vested title in him. William denied that George had any interest in the land, and contended that the power of attorney did not authorize George to sell and convey the land, and, if it did, that the sale was not bonâ fide, but colorable with a view to defraud him, or, if bonâ fide, that George could only sell for cash, and not on the terms and in the manner it was sold.
It is not disputed that, however the right to the property came to Jane Taylor, the mother, she, on the 3rd March, 1832, contracted with the authorities of King’s College for its absolute purchase in her own name, and by virtue of which the deed was subsequently made to William Taylor, as assignee, by the college.
On the 29th Nov., 1839, Jane Taylor assigned her interest in the land to Defendant, George Taylor. The deed by which this was accomplished expresses to be in consideration of £100 paid by George Taylor, the receipt of which is acknowledged, and the instrument contains a covenant by George Taylor, “that he will pay all the remaining instalments that are due on the said land to the scholars or corporation of King’s College (though the deed does not appear to have been executed by George Taylor), and Jane Taylor thereby requested that the deed for said land should be made out and issued in the name of George Taylor, upon his paying the remaining instalments due on said land.
On the 30th Oct., 1841, George Taylor assigned by a similar instrument alleging the same consideration of £100, his interest in the said land, and though containing a similar covenant by William Taylor as to paying instalments, it was not executed by William Taylor.
On the 29th November, 1847, by a similar deed, containing a like covenant on part of George Taylor, William Taylor, in consideration of £150 to him paid by George Taylor, transferred to him the said contract and lands. This deed is executed by both William Taylor and George Taylor.
On the 12th April, 1851, George Taylor, by an instrument under seal, in consideration of five shillings to him paid by William Taylor, re-assigned and set over the said contract, and all benefit and advantage to be derived therefrom; to hold the same and the lands therein mentioned to him and his heirs, and requested that the deed for the same might issue to him. This document was witnessed by L. Wallbridge and the Defendant W.H. Wallbridge. And on the 24th April, 1851, the Chancellor, trustees and scholars of the University of Toronto, duly conveyed the said lands to the Plaintiff William Taylor.
This placed the legal title in the said lands, on the 24th April, 1851, in the Plaintiff, and this title remained unchanged until the 29th day of December, 1856, when a deed of that date was made and executed by W.J. Taylor by attorney George Taylor to Adam Henry Wallbridge, and which was registered 3rd January, 1857.
This deed purported to be made by and between William Johnson Taylor, of the City of San Francisco, in County of Calaveras, and State of California, but formerly of the Town of Belleville and County of Hastings, gentleman, of the first part; Adam Henry Wallbridge, of the Town of Belleville and County of Hastings, Esquire, of the second part; and witnesseth that the party of the first part for and in consideration of £250 of lawful money of Canada, to him in hand paid by the said party of the second part, had given, granted, bargained, sold, aliened, released, enfeoffed and conveyed all and singular that certain parcel or tract of land and premises, situate, lying and being in the Township of Thurlow, in the County of Hastings, being composed of the north half of Lot Number Eight, in the Second Concession of the Township of Thurlow and County of Hastings. To have and to hold in fee simple, with all appurtenances subject to original reservations. Covenants for seizen, good right and title to convey, quiet possession, freedom from incumbrances and further assurance. On the same 29th Dec., 1856, by a deed dated on that day and registered the said 3rd Jan., 1857, and purported to be made by and between Adam Henry Wallbridge, of the Town of Belleville, and County of Hastings, Esquire, of the first part; and George Taylor, of the Township of Sidney, and County aforesaid, Esquire, of the second part, it was witnessed that the said party of the first part, for and in consideration of the sum of fifty pounds of lawful money of Canada, to him by the said party of the second part in hand well and truly paid, had given, granted, bargained, sold, aliened, released, enfeoffed, conveyed and confirmed unto the said George Taylor, his heirs and assigns, the north seventeen acres and the south thirty‑three acres of the north half of lot number eight, in the second concession of the Township of Thurlow. Same covenants as in last deed.
The authority for making the deed of the 29th Dec., 1856, to Adam Henry Wallbridge is alleged to be under the power of attorney set out at length in the Plaintiff’s bill, dated 11th Oct, 1851, whereby William J. Taylor constituted and appointed George Taylor his true and lawful attorney for him and in his name and behalf to sell all that certain tract or parcel of land known as lot No. 8, second concession of the Township of Thurlow, in the Victoria district and Province of Canada, as also to act as his attorney in the sale or leasing of any lands of which he was the owner in the said Province of Canada.
The legal title from the College being thus shown to have been in William, the first question we have to consider and determine is, was William under the deed from the College the beneficial as well as the legal owner, or was he only clothed with the legal estate for the benefit of George, the real owner? If William was a mere trustee, vested with the legal estate for George, the bene- ficial owner, and the transfer of the property was made to Defendant Wallbridge, by and at the instance of George, under the power of attorney from William, it is obvious William could have no right to have such disposal of the property interfered with, whatever may have been the consideration for, or agreement or arrangement between George and Wallbridge under which such transfer was made, and consequently could have no ground for maintaining the present suit.
We must, therefore, enquire, first, who was the beneficial owner under the deed from the College? If George, the case ends. If William, then was the transfer under the power a good and valid conveyance of William’s interest to Wallbridge? As the documentary title indicates no trust the burthen of establishing that the property was held in trust necessarily rests on the Defendants. At the outset I can safely say that I have never, that I can remember, been called on to consider a case where the evidence was so contradictory and unsatisfactory as in this case—the witnesses not only contradicting one another, but each, more or less, contradicting himself; and it is through this mass of conflicting statements that we have to grope our way to a conclusion.
After giving this case more than ordinary consideration, I am constrained to the conclusion that the weight of evidence establishes, with as much certainty as one could expect to feel in a case where the whole evidence is so unsatisfactory, that the property in question was transferred by William to George on the eve of a contemplated departure from Canada to enable George, as his agent, the better to look after his interests and obtain for him the title from the College. It is not disputed that he had left George as his agent in charge of all his other large real estate, which George says amounted to $20,000, and that, as William says, he handed his papers to George on leaving. On 30th June, 1853, George himself swears as to the papers connected with this property, as follows:
William left Canada in December, 1850, and then left with me (George) the contract for purchase of the deed and the assignment to me.
This was in the controversy when George was putting William forward as solely interested in the land.
And William says:—
I made a transfer of some property to George when I thought of going West; I had obtained an assignment at one time of the right my brother had in the land in dispute. I recollect the assignment from myself to George, which was made afterwards. I executed this to him as my agent.
This statement of William’s appears to me to be as strongly confirmed as it very well could be by George, who on the 3rd March, ‘53, swore as follows:—
The assignment from William Taylor to me was without consideration, and made to me because he (William) was going to California.
And again, on the 15th May, ‘56, after testifying that he could not tell why Wallbridge advised him to assign to his brother, says:—
I had no reason, but that I had not paid my brother.
At another time he says:—
I think it was done so that I might be a witness.
I think the weight of evidence likewise establishes that the re-transfer was not for the purpose of vesting the legal title in William, with a beneficial or resulting trust in favor of George, to enable George to appear as a disinterested and competent witness, as suggested by George, when, in fact and in truth, he was the reverse, but was made because William was the beneficial owner. This suggestion of George, that the transfer was made to enable him to be a witness is at variance with his answer: for in paragraph 2 he says he cannot now say why he assigned to Plaintiff; and it is not confirmed by Wallbridge, who assigns an entirely different reason. I am unwilling to think, without the clearest evidence, that any respectable solicitor could have advised a transfer for such a purpose, with a view, in contemplation of such evidence being given and the land thereby recovered, that a claim should be subsequently set up of a beneficial interest in witness.
On principles of public policy, I should hesitate long before I should be willing to admit that a party, who claims a resulting trust on the ground that he made a transfer of the property with a view to enable himself to testify in relation to it as a disinterested and competent witness in a suit pending, or in contemplation, in which the title to such property was in issue, and in such suit put himself forward as such disinterested witness, and was accepted on testifying that he had no interest in the property, could be allowed to set up what, if his contention is correct and successful, can, I think, be looked on in no other light than a fraud on the Court. I am, by no means, as at present advised, prepared to say that a party who has so put himself forward as having no interest in the property ought to be permitted to invoke the aid of the Court so deceived, or any other Court, to assist him in obtaining the fruits of his deception, by declaring that he then was and still is the beneficial owner, and that the owner put forward by him as the absolute owner had no beneficial interest in the property whatever, but that the title merely stood in his name as trustee. To give judicial sanction by giving efficacy to such a proceeding seems to me repugnant to the due and proper administration of justice. Weak and impotent, indeed, it appears to me, would be the law if a man could deal thus treacherously with its tribunals, and then constrain the same tribunals to give him the benefit and advantage of such treachery; but it is unnecessary to discuss this question further, as I cannot think that, if both Wallbridge and George knew that this suit, if gained, would inure to the sole individual benefit of George, the transfer could have been advised by Wallbridge, or made by George, under the idea that he should, as he certainly did do, appear in Court, offer himself as a disinterested and competent witness, and qualify himself as such by swearing on the voir dire that he had no interest in the property. Nor am I able to bring myself to the conclusion that the transfer was made for the reason assigned by Wallbridge. He says the assignment was made to William at his suggestion in view of litigation. On this all important point in his case we would naturally expect as part of his case a very clear and circumstantial account of this transaction, and satisfactory reasons assigned for advising a client to place his property in the name of a person of whose very existence at the time there was no certainty. But in his direct examination we find no particulars whatever given, and it is only on his cross‑examination we find the reasons brought out.
It is well to bear in mind that the assignment from George to William was on the 12th April, ‘51; and the deed from the College to William on the 24th April, ‘51, and that Mr. Wallbridge says the litigation took place after deed was obtained from the College, the first steps of which were taken by him, for he says:—
I first commenced an action against Fairman at the suit of the Plaintiff.
And then, on his cross-examination, he gives his reasons for advising the transfer. He says:—
I think the bargain (that is the bargain between himself and George Taylor) was made with George Taylor about a month or six weeks before the deed issued from the College; no litigation was going on; I supposed it could be got without litigation at that time. I did not find out that we could not get the property without litigation until the month of May. Up to this time I thought we could get it without litigation.
And he then says:
It was in view of litigation with Canniff that I advised the transfer to he made to the Plaintiff. Although I supposed there would be no litigation, I had the transfer made with a view to litigation. It was the litigation with Canniff that I sought to avoid. * * * By taking the deed from the College, I thought Canniff might prosecute for taking a title in litigation. The litigation I meant that was to be avoided by taking the deed from the College to William was the qui tam action against George Taylor.
I do not regret being forced to say that I cannot accept this statement as affording a satisfactory or credible reason for suggesting the transfer. I think Mr. Wallbridge’s memory must have failed him with respect to this. It is difficult for me to understand how any man, lay or legal, could be induced to believe, without corroborative evidence of an overwhelming character, that any sane lawyer could advise a client to put his property in the name of another with a view to litigation, when he thought that the property could be got without litigation, and when he supposed there would be no litigation, and put the title in the name of a person away in California, of whose whereabouts, or even of whose existence, there was at the time no certainty, and that, too, in the year 1851, when access to and communication with California was so different from what it is at this day; nor can I bring my mind to believe that without the knowledge or consent of William, a responsible man, having apparently large real estate in the country, though absent therefrom, any solicitor would suggest, or any honest man would act on the suggestion, that to enable the actual owner of land to escape a qui tam action, he would put the title in the name of an absent man, and so make him liable to the very prosecutions from which he desired his own client to escape, and subjecting him to consequences the real owner feared to meet, and that this same solicitor should, without any directions or authority from the party whose name had been so dealt with, institute and defend suits in his name, based on a title so acquired, and thereby expose this absent and innocent man, not only to a possible qui tam action, should he return to the country, but involve him in litigation as Plaintiff and Defendant, at law and in equity—thereby subjecting him and his estate to possible penalties and heavy costs. A proceeding so unusual, and, if I may be permitted to say so, to my mind so unjustifiable, I cannot accept as the reason why the transfer was made from George to William, when I find in the evidence reasons assigned and testified to at the very time the transactions took place, when all was fresh and with surrounding corroborations, which afford a solution so much more reasonable and satisfactory. On the contrary, then, I think the reason for the transfer was, as George himself at one time swears, because he had not paid his brother for the land. In other words, as I construe his statement, because the land rightfully belonged to his brother. This view, without compromising anybody, fully justifies the advice of Mr. Lewis Wallbridge, which, as George says, was this:
I swore in that suit that my brother was the owner, at the advice of Mr. Wallbridge;
And I think the facts will justify the assumption that, in view of all the circumstances, a transfer was made to William, and so the legal title placed where the beneficial interest was, and thereby George was in a position honestly and truthfully to testify that he had no personal interest in the matter, and so was not interested in the result of the suit. That this was so, is somewhat corroborated by the fact that neither of the Defendants called Mr. Lewis Wallbridge, who must have known exactly what the transaction was, for George says:
The answer in the Canniff suit was made at the advice of Mr. Lewis Wallbridge;
And strongly, by the direct evidence of George, who, speaking of the litigation in 1851, says:
The facts at the time were much fresher in my memory then than they are now. I was also examined as a witness before the Court at Toronto. The evidence I then gave was true, to the best of my belief. I swore, in that suit, that my brother was the owner, by the advice of Mr. Wallbridge. I swore, in that suit, if my brother was living, I had no interest; if dead, I would be interested as his heir-at-law;
And more strongly by the sworn statements of George, made so far back as 1852 and 1856, when the facts, he says, were—and we well know must have been—so much fresher in his memory.
On the 22nd November, 1852, he went before the Court in the suit of Canniff v. Taylor as the avowed agent of William Taylor, and so expressed to be on the face of the answer, and as such agent defended the suit and caused to be put in William’s answer these words (to the truth of which he swore), viz.:
Defendant (William) by his agent, applied for and obtained the deed of said land from the College and paid the balance of principal and interest due the College thereon, as he humbly submits and insists he had a perfect right to do.
It is true, on 29th June, 1874—22 years after—in paragraph 3 of his answer in this suit, he is made to swear:
I defended the Canniff suit, not as agent and attorney for Plaintiff, but on my own behalf, as the person beneficially interested in the lands.
And this statement of William’s interest is put forward, not only in the face of the answer in the Canniff suit, but of his sworn deposition made on the 15th May, 1856, in which he says: I say, if my brother is dead, I have an interest in the suit; if he is not dead, I have no interest. At present, I am not aware he is dead.
And again:
After the last assignment was made to William, I made the payment on the said half lot No. 8 to the College (£148), and obtained the deed for the Defendant (William), and in the Defendant’s (William’s) name.
I think I am bound to give credence to these sworn statements, made in 1852 and 1856, in preference to those made in 1874 and later.
There are other circumstances in the case which tend, with considerable force, to confirm the view that William was the owner, in addition to the fact stated by George that William had made several payments to the College, which statement would seem to be accurate, from the fact that the balance paid on 14th April, 1851, on account of principal and interest (£128 10s.), together with what the mother would seem to have paid, would not cover the amount of the purchase-money and interest; and it is not pretended that George or Wallbridge (if they paid anything) paid more than the amount mentioned in the receipts. The circumstances to which I refer are connected with the power of attorney and deed made under it. The power of attorney appears to me wholly at variance with Mr. Wallbridge’s contention. His connection with the land he states thus:
George Taylor told me he had a pre-emption for the purchase of certain lands from the College. He wanted me to furnish the money and to take a half interest in the land.
And as to the power of attorney, he says:
George had a power of attorney from William. He got it at my suggestion. I advised him to do this to get my share of the land.
To accomplish this, George would require simply an authority from William to convey the dry legal estate.
This power neither recognizes any interest of George in the land, nor does it give any direct authority to convey such legal estate; on the contrary, it authorizes George to do under it what, if Mr. Wallbridge is correct, it was never contemplated he should do, viz., “to sell” this land. But it is not confined to this land; it gives George a general power to act as his attorney in the sale or leasing of any lands of which he (William) was owner in the Province of Canada.
Thus, whilst the inconsistency of the writing with the statement of Mr. Wallbridge is established on the one hand, its consistency with the property being William’s is made apparent on the other.
Looking at the deed to Wallbridge executed under this power, we find the view that the land was the property of William, I think, still further strengthened. If the property was really George’s and had been put in William’s name, and behind his back, for the sole purpose of accommodating George and saving him from possible ulterior consequences, and authority had been obtained to use William’s name merely to vest in Mr. Wallbridge his share, why did Mr. Wallbridge insert, or permit to be inserted, in the deed, made only for the purpose of divesting a trustee of a bare legal estate, and vesting it in his cestui que trust, or his assignee, covenants on the part of William for seizin, good right and title to convey, quiet possession, freedom from incumbrances, and for further assurances. Surely, all this indicates that the power of attorney was intended to accomplish more than Mr. Wallbridge would lead us to suppose, and the doings of George under it show plainly that he did not so consider it, for he appears to have sold and conveyed under its authority other lands with the full knowledge of Wallbridge, who says:
I knew that George was selling lots on the hill under power of attorney obtained from William. George received the monies. I saw the monies paid to him. and corroborates with much force the contention of William, who, in his bill, alleges that the power of attorney was by him executed while in California and sent to the Defendant, George Taylor, to enable him to act as trustee and agent for him, the Plaintiff, in the management and sale of the said lands and premises therein mentioned; and who, in his evidence, on 10th November, 1874, says:
I sent him the power of attorney because he asked me for it. When I gave him the power of attorney, I don’t know that I thought he would sell it. I thought it being a wood lot he might want it to enable him to take care of it.
And which is by no means inconsistent with the statement of George that:
The reason he (Plaintiff) sent me the power of attorney was because he was in debt. I wrote him, I think, for the power of attorney.
And the conveyance under it, not being such an instrument as a bare naked trustee, and one made so without his knowledge or consent, ought to be called on to execute; but on the contrary, the power of attorney and the deed under it being just such instruments as a purchaser for value would naturally look for from a vendor selling on his own account in his own right, is it not a legitimate inference that the title was as the documents thus indicate? I may here say, with reference to this power of attorney, I cannot agree with an observation of one of the learned Judges in the Court below that the transactions of April, 1851, though effected in the absence and without the knowledge of the Plaintiff, “were promptly communicated to him.”
I cannot discover one title of evidence that there was, with the power of attorney transmitted any particulars whatever. George does not say he wrote the particulars, and Wallbridge says he never wrote to him, and the power itself, for the reasons I have assigned, affords, to my mind, strong evidence that such was not the case, or, if they had been, a power consistent with the transaction would have been transmitted for execution by William.
The same learned Judge assumes that the power of attorney was drawn in, and sent from, California; he says the instrument contains internal evidence of having been prepared abroad. Our attention has not been called to any such evidence, and the evidence in this case is directly the reverse. Mr. Wallbridge makes it apparent that this power of attorney was drawn in Canada, for he says:
And the power of attorney was sent to be executed at my suggestion.
And again he says:
I never wrote to Mr. Taylor; I was instrumental in having power of attorney sent to him.
And William says:
I sent $1,000 to him (George) in 1851, when he sent the power of attorney.
And he (William) says:
I don’t know where the power of attorney was drawn.
Which he must have known, if George had not sent it to him to be executed, and if he had had it prepared in California. I, therefore, much prefer adopting the conclusion I have suggested, as being perfectly reasonable and natural and involving no imputation of impropriety on any person, supported, as I think it is, by evidence direct and indirect, rather than the suggestions of either George or Mr. Wallbridge, which are, to my mind, the very reverse. I have dwelt at this very great length on this branch of the case, because I think it the turning point.
Assuming, then, that William was the beneficial as well as the legal owner, was there a valid and binding sale and transfer by William to Wallbridge? It has been much pressed on Mr. Wallbridge’s behalf that the balance due the College was paid by him. It is quite impossible to say with any degree of reasonable certainty who actually advanced the money to pay the balance due the College. William did not do it personally, though, if George’s statement is true, William had made two or three payments to the College. George, William says, (and it is not disputed) was the sole manager of his property in this country; and it is not disputed that he sold property of William’s to a very large amount, and it is obvious that large sums from this source, belonging to William, must have been from time to time in his hands, an account of which, though written for, William could never obtain; in addition to which, William appears to have remitted George $1,000 from California with the power of attorney, but there is no evidence that he appropriated any of these funds to pay this balance, unless, indeed, such an inference could be drawn from the statement in the answer in the Canniff suit, which George swore was true:
That this Defendant (William) by his agent, applied for and obtained the deed of the said land, and paid the balance of principal and interest due to the College, as he humbly submits he had a perfect right to do.
If William, by his agent, did pay, and that agent had funds belonging to William in his hands, the presumption would not be very violent, that the payment was made from such funds. Both George and Wallbridge, with equal positiveness in some statements, and equal doubtfulness in others, claim to have paid it. But, it seems to me impossible to discover from their contradictory and conflicting statements, whose money went to the College. It is useless to go through or comment on all these different inconsistent statements as to the payment of the money. As everything connected with this payment, apart from the papers, rests on the evid- ence of George and Wallbridge, it is only necessary, to show how very unreliable this evidence is (no doubt from failure of memory), to read from Wallbridge’s testimony. He says:
I paid it to George Taylor. I made no entry of it. I knew that Taylor swore he paid the money. I think I paid George Taylor on account of this land. I can’t remember what I paid. I think I paid him £215—the consideration money in the deed. I think Mr. Taylor got my brother Lewis to send the money to the College. It may have been my money; my impression is it was, but it is so long ago that I can’t remember distinctly.
But by whomsoever advanced, the direct testimony of George and the written documents show it was transmitted to the College by George, for and on account of William, for the purpose of obtaining for him the deed, and that the College so understood it is plain, for the Bursar, in his letter to George enclosing the receipt for the money, says:
The deed will be made out and forwarded to William Johnson Taylor as soon as possible.
If, then, the property really belonged to William, I am at a loss to understand how it can be successfully contended that the sale or arrangement, whatever it was, between George and Wallbridge, and the transfer, under the power of attorney in evidence, to give it effect, can be held to bind William or divest him of his interest in the property.
The entire transaction was between George and Wallbridge, not in reference to William’s property, but in reference to property they both assumed to belong to George, and in which, as they put their whole case, William had no beneficial interest. On what principle can such an attempted sale of, or bargain for, George’s supposed interest or property be now turned into or sustained as a sale of William’s property? Wallbridge purchased, and George sold half of his (George’s) interest in the land. Neither George nor Wallbridge pretends to say that George sold, or proposed to sell, or that Wallbridge bought, or proposed to buy, any interest of William’s. Both repudiated then, and repudiate now, that William had any right or interest to dispose of, but acted throughout, and have conducted their defence to this action, on the assumption that William had no beneficial interest in the property.
In his answer, Wallbridge claims to be an innocent purchaser for value, but, if his evidence is true, it was not of William’s, but of George’s, interest; but if these transactions between George and Wallbridge had had reference to William’s interest, it seems to me impossible the transactions could stand. I think George and Wallbridge cannot be separated; the evidence shows, beyond all doubt, that George was acting throughout, not only under the advice, but, it may almost be said, under the direction of Wallbridge and his brother and partner, and that they were cognizant of all matters connected with the land, and not only advised but controlled their doings in relation thereto, more than George himself. It would be a useless waste of time to go through the evidence, in detail, of George and Wallbridge, and point out the extraordinary and manifold variances and inconsistencies, either as to the time when this alleged sale took place, the terms of the sale, or the alleged consideration. Some idea may be formed by briefly referring to a few irreconcilable statements. Wallbridge alleges the sale, or agreement for sale, was before the assignment from George to William. William says it was after litigation commenced, which was after the deed from the College; The written paper which contains, William says, the agreement, and is signed by both George and Wallbridge, and is in Wallbridge’s handwriting, is dated 7th July, 1853, more than 2 years after the deed from the College, which is dated 24th April, 1851. Wallbridge says there was no writing in relation to it—that the whole was verbal between him and George. The agreement in his own handwriting, and signed by him, is as follows:
7TH JULY, 1853.
Received, from Adam H. Wallbridge, the sum of £90 5s. 0d. on account of purchase of one half lot, No. 8, in the second concession of the Township of Thurlow and County of Hastings, which I have agreed to sell to him for two hundred and fifteen pounds, said Wallbridge to bear one half of the expense of the suit now going on respecting said half lot in the Court of Chancery and Queen’s Bench, the remaining five hundred dollars to be paid this Fall. If the suit in Chancery does not terminate successfully, then each party to sustain half the loss, and said Wallbridge is not then to pay five hundred dollars.
(Signed), G. TAYLOR.
(Signed), ADAM H. WALLBRIDGE.
Wallbridge says the consideration was what he paid the College, and that he made no entry of what he paid. George says:
My agreement with Wallbridge had not been made before the proceedings were commenced. It was after the proceedings had commenced, and I had got disheartened about the costs that I made the arrangement with Wallbridge.
And after the written agreement is brought to light, which is dated 7th July, 1853, and shows an entirely different transaction from any one of those put forward by George or Wallbridge, he says:
I think the bargain was made before the deed was obtained from the College, and long before this document seems to be signed. I have no recollection whether this contains the bargain between us. I have no recollection that he was to pay me $500 the next Fall. It is in A.H. Wallbridge’s handwriting. I don’t know whether I received the money mentioned in the document.
Though he had before stated “I think the agreement or contract with Defendant was in writing;” that he had a copy at home, and had it the previous night; that it was then at home, and that the agreement related to this land.
And when produced, he says: The paper, writing now produced and shown me is the written agreement with Defendant, Wallbridge, and myself. It is signed by Mr. Wallbridge and myself.
Wallbridge says:
I think the bargain was made with George Taylor about a month or six weeks before the deed issued from the College. No litigation was going on. I made the bargain with George Taylor before money was sent to College. My bargain with George Taylor was, that I was to pay the College and indemnify him against all costs of suit that might be brought against him respecting the land, and I was to get half the land. * * I do not think there was any memorandum in writing. The litigation took place after the deed was obtained from the College.
At another time, he says:
I paid a balance of a note to Filliter to make up the amount of difference between the money I paid the College and the money going to Taylor. In making up the account I took the amount of the College money and the amount Taylor had paid on chancery suit, and paid the balance on the Filliter claim. I never searched my Bank account to see how I paid the money to Taylor.
Again, he says:
I paid the money that went to the College. I paid it to George Taylor. I made no entry of it. I think I paid George Taylor money on account of this land. I can’t remember what I paid. I think I paid him £215, the consideration money in the deed.
George says:
Mr. Wallbridge paid me no money for the half he got. I conveyed the whole lot to him, and he conveyed back the half to me. This was done at Wallbridge’s advice. I do not think the money to pay the College was furnished by Defendant (Wallbridge.) My remembrance is that I furnished it myself.
And on 15th May, 1856, he swears:
The amount I paid to the College was about £145.
The written paper shows the payment to have been on the 7th July, 1853, and for £90 5s. 0d., instead of £143 7s. 1d., the amount paid the College. Both say nothing remained to be paid. The paper says $500 was still to be paid; and, if Wallbridge’s account is correct. he paid the money in 1851; made no entry of it; had no writing to evidence his payment or his agreement in reference to this land, and, therefore, must have continued in that position till 29th December, 1856.
Then, as to this bonâ fide purchase for value, it is difficult to understand how any prudent business man of ordinary capacity could make so large a purchase, and on such unusual terms, and pay so much money on account of it, and make no entry of any such payment; take no written memo of the agreement, or the terms of a transaction of so exceptional a character, and which the law required to be in writing to be binding and effective, and which could not be completed for an indefinite period, and so continue for years without any binding agreement, receipt, voucher or inditia of title, or payment of any kind, or even any entry in his own books; nor is it easy to be understood how Defendants, in the position these parties were—their minds so much at variance as to the particulars of this transaction—should appear before the Court without having examined their books and cash and bank accounts, and exhausted all other means of information calculated to sustain their contention. If they had such means of information, and did not choose to resort to them; or, if they had no such entries and no such accounts, no documents, no books to refer to, they cannot complain, if a transaction conducted so out of the usual and ordinary course of business, and left to rest on evidence so unsatisfactory, is not accepted.
But taking Wallbridge’s contention in a way the most favorable to him, he has no case. The power of attorney gave no authority to George to make any one of the various arrangements spoken of by George and Wallbridge, and certainly gave no authority to give effect to an arrangement entered into, as Wallbridge persists in saying, not only before the title came to William from the College, but before George assigned to William, and, therefore, long before George had any authority from William to interfere with or dispose of any interest he may have had therein, and certainly the power gave no authority to George to convey the whole land to Wallbridge, or authority to Wallbridge to re-convey half to George.
But if the sale was in other respects unobjectionable, the transaction, it seems to me, could not stand. An attorney or trustee for sale is entirely disabled from purchasing the trust property. If George, and Wallbridge as attorney under him, were acting for William in securing the title, in recovering possession and effecting a sale of this property for William, they could not sell the property on William’s behalf to themselves. The rule is now universal, that however fair the transaction, the cestui que trust is at liberty to set aside the transaction and take back the property. The law simply will not allow a man to be at the same time a seller and a buyer; therefore, any one intrusted with the sale of another’s property, who directly or indirectly becomes the purchaser, commits, ipso facto, so far a fraud in the eye of the law that the owner may, at his election, avoid such sale.
In McPherson v. Watts[16], Lord Cairns, Ch., says:
It is here that the pointed observations by Lord St. Leonards, in this House, in the case of Lewis v. Hillman[17], become so very material. They were not observations laying down any new rule of law, for the same principles had already been applied in numerous cases, but what Lord St. Leonards said in that case, was this: Take the case of a sale of any kind, which is so fair, so reasonable as to price, so entirely free from anything else that is obnoxious, as to be capable of being supported, yet, if there has entered into that sale this ingredient, that the client has not been made aware that the real purchaser is his law agent—if the purchase has been made in the name of some other person for that law agent—that is a sale which cannot be supported. My Lords, so say I here. Assume, if you please, that in every respect as to price, and as to all other things connected with the sale, this was a sale which might have been supported had the McPherson family been told that Watt was the purchaser; in my opinion, it cannot be supported from the circumstance that that fact was not disclosed to them.
The defence of the Statute of Limitations is raised by the Defendant’s answer.
Chief Justice Haggarty says it was conceded by the Respondent, the Defendant, on the argument, that the Statute of Limitations had no application to this case as a bar or otherwise, and I understood it was so admitted on the argument before this Court, but as some doubts have been expressed on this point, it is necessary for me to show why I think the Plaintiff’s claim is not so barred.
George says:
I dispossessed Canniff, and I went into possession; I cannot tell when.
The means by which he dispossessed Canniff was the suit against Fairman (Canniff’s tenant), consequently it must have been after the date of that judgment—27th November, 1856—that he went into possession.
Wallbridge says the land was in possession of Osborne (Canniff’s tenant) when the deed was obtained from the College.
George is examined the 15th May, 1856, and says:
I brought an ejectment against Plaintiff, Canniff, in my brother’s name, by the advice of Wallbridge. The action of ejectment was brought in 1853; that was staid by injunction. Canniff is still in possession.
The deed from W.J. Taylor by his attorney, George, to A.H. Wallbridge, is dated the 29th December, 1856, and the bill was filed in this cause on the 25th April, 1874. I cannot conceive how he can claim a possessory interest in this land before the date of the deed to him, and before he had any possession, actual or constructive, and as the judgment in ejectment against Fairman, who held under Canniff hostile to all parties, was signed on the 27th November, 1856, and this was the first litigation brought in the name of William Taylor, as A.H. Wallbridge says by him, to get the possession, and under which possession was obtained, how then can he claim a title by possession before the possession was acquired? From all this, it is abundantly clear that neither Wallbridge nor George had 20 years possession; so this defence fails.
But it has been urged that the Plaintiff has acquiesced in the sale, and by lapse of time is now estopped from disputing the validity of the sale under the power of attorney. As there never was any sale of William’s interest in this property, it is somewhat difficult to understand how the doctrine of acquiescence is to be applied to a case of this kind; but suppose it applicable, I am by no means prepared to dispute that, while in cases of expressed trust by act of the parties no time will be a bar, acquiescence for a long time in an improper sale may disable a person from coming into a Court of Equity to set it aside. I am, nevertheless, at a loss to conceive how it can be claimed there was any such acquiescence in this case. Lapse of time can only commence to run from the discovery of the circumstances—until such discovery, or until such reasonable notice of what has happened has been given to the party injured, as to make it his duty, if he intends to seek redress, to make enquiry and to ascertain the circumstances of the case. No man can be supposed to acquiesce in that of which he was in entire ignorance. What are the circumstances under which we are asked to find an acquiescence in this case? The property being the property of William, then absent from the country, was, with other large property, placed by him in the charge of George, and George employed a solici- tor to assist him in the management and litigation connected with the property. William appears, from time to time, to have striven to obtain a knowledge of the state of his property and the doings of his agent, by writing for money and information which he was certainly entitled to, but which he appears to have sought in vain, for it is not pretended that the one or the other was ever sent him. In this state of ignorance as to his affairs, he appears to have returned in October, 1873, and then finds, that while absent, the deed had been obtained in his name, actions at law and equity had been brought in his name, and as the result of such litigations, possession of the property had been obtained in his name; but instead of all this being done for his benefit, he finds that his agent and his attorney in such litigations repudiate his right and his title, and setting up a right in his agent, had under color of a sale, not of his (William’s) interest, but of an alleged interest of George, his agent, divided the property between themselves, by George, conveying the whole to Wallbridge, under an authority from William to George to sell his (William’s) property, and Wallbridge re-conveying half back to George.
This would appear to be the first intimation that the principal had of any act or deed by his agent or attorney inconsistent with his interest or their duty. On the 25th April, six months after discovering the position of his property, he files this bill. Can it be said there has been laches, delay, or acquiescence; on the contrary, I think there has been the greatest promptitude after the facts appear to have come to his knowledge upon which the supposed acquiescence is founded.
But it has been argued that as the deeds from him to Wallbridge, and from Wallbridge to George, were on record, he could have discovered the transactions. This, to me, is simply a monstrous pro- position, as applied to an absent person who leaves an accredited agent behind him to look after his property in his absence, which agent employs an attorney to assist him and represent his principal in Court and out, both of whom he had a perfect right to expect were guarding his interest, and not invading his rights, and both of whom well knew that in his absence any examination of the records by him was simply impossible. To hold that the improper acts of agents or attorneys, under the authority confided to them, are to be considered as acquiesced in, because their principal does not cause, during his absence, a constant supervision to be kept over them, would be to enunciate a principle I have never yet heard propounded, and which, I humbly think, would entirely weaken, if not overturn, those principles by which the relation of principal and agent and attorney and client are governed.
Though very unwilling to differ from the majority of the Court of Appeal of Ontario, for which Court, I need not say, I have the very highest respect, I cannot avoid the conclusion that the decree of Vice-Chancellor Proudfoot was right, and that his decision ought not to have been reversed.
I, therefore, think the appeal must be allowed, the judgment of the Court of Appeal of Ontario reversed, and the decree of Vice-Chancellor Proudfoot, dated 6th March, 1875, affirmed, with the costs of this appeal, and the costs of the re-hearing, and in the Court of Appeal of Ontario.
STRONG, J.:—
The Appellant, by his bill, impeaches a transaction which took place in the year 1851, the bill having been filed in 1874. This lapse of time, though by itself, under the circumstances of the case, it may have no conclusive effect as constituting either a statutory or equitable bar, ought, at least, to induce the Court to make every fair and reasonable presumption in favour of the validity of a transaction sought to be avoided after such gross delay, and to require strict proof from the Appellant in support of his case. That the Respondent has been prejudiced in his defence by the delay which has occurred is apparent from the fact that the mind and memory of his principal witness, George Taylor, has, in this long interval, become so impaired that his recollection of the circumstances attending the original bargain between himself and the Respondent is imperfect and indistinct.
The extraordinary perversion of this property, which was originally a leasehold interest, from the destination of it prescribed by the will of John Taylor, who devised it to be divided amongst his wife, his nephew, and such of his children as should reside on the farm—a disposition with which the dealings of his widow and executrix, Jane Taylor, in surrendering the lease and entering into a contract of purchase, were entirely inconsistent—calls for no explanation in this suit, for, as the learned Chancellor has observed in his judgment on the rehearing, it was not for the interest of any of the parties litigant to call in question this dealing with the land by Jane Taylor, the executrix, since they all claim under her contract of purchase with King’s College.
The evidence shows sufficiently that the transfer of the 30th October, 1841, by George Taylor to the Appellant, was for value. That the consideration