Sydney and Louisburg Coal and Railway Co. v. Sword

Sydney and Louisburg Coal and Railway Co. v. Sword
Collection
Supreme Court Judgments
Date
1892-06-28
Report
(1892) 21 SCR 152
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Taschereau, Henri-Elzéar; Patterson, Christopher Salmon; Gwynne, John Wellington
On appeal from
Nova Scotia
Subjects
Property law
Decision Content
Supreme Court of Canada
The Sydney and Louisburg Coal and Railway Company v. Sword (1892) 21 SCR 152
Date: 1892-06-28
The Sydney and Louisburg Coal and Railway Company (Limited) (Defendants)
Appellants
And
Jane Sword (Plaintiff)
Respondent
1892: Feb. 26; 1892: June 28.
Present:—Sir W. J. Ritchie C.J. and Strong, Taschereau, Gwynne and Patterson JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Title to land—Foreshore of harbour—Grant from local government—Conveyance by grantee—Claim of dower by wife of grantee—Objection to—Estoppel—Act of local legislature—Confirming title—Validity of—Pleading.
After the British North America Act came into force the government of Nova Scotia granted to S. a part of the foreshore of the harbour of Sydney, C. B. S. conveyed this lot, through the C. B. Coal Co. to the S. & L. Coal Co. S. having died his widow brought an action for dower in said lot to which the company pleaded that the grant to S. was void, the property being vested in the Dominion government.
Held, affirming the judgment of the court below, Strong and Gwynne JJ. dissenting, that the company having obtained title to the property from S. they were estopped from saying that the title of S. was defective.
Per Strong and Gwynne JJ. dissenting. The conveyance by S. to the C. B. Coal Co. was an innocent conveyance by which S. himself would not have been estopped and as estoppel must be mutual his grantees would not. There were no recitals in the deed that would estop them and estoppel could not be created by the covenants.
After the conveyance to the defendant company an act was passed by the legislature of Nova Scotia ratifying and confirming the title of the defendant company to all property of the C. B. Coal Co.
Held, that if the legislature could by statute affect the title to this property which was vested in the Dominion government it had not done so by this act in which the crown is not expressly named. Moreover the statute should have been pleaded by the defendants. Appeal from a decision of the Supreme Court of Nova Scotia[1] affirming the judgment for the plaintiff at the trial.
The facts are sufficiently stated in the above head-note and the judgments of the court hereinafter given.
W. B. Ritchie for appellant referred to Gaunt v. Wainman[2] and Small v. Procter[3] on the question of estoppel.
Drysdale for the respondent cited Hitchcock v. Harrington[4] and Bigelow on Estoppel[5].
Sir W. J. RITCHIE C.J.—Inasmuch as the defendants claim title to the premises in question from the Cape Breton Co. limited, who obtained title to the same from Wm, Sword and entered into possession under such title, I think they, the defendants, are estopped from saying that no title passed to Sword or from questioning the title of Wm. Sword under his grant from the crown by the Lieutenant-Governor of Nova Scotia to Sword who entered into possession under the grant to him and the Glasgow and Cape Breton Railway Co. under Sword's deed to them, and the Sydney and Louisburg Coal Co. under the Glasgow and Cape Breton Co. with no better or other title than the Glasgow and Cape Breton Co. obtained from Sword.
How can it be urged that the defendants did not claim through Sword when the Glasgow and Cape Breton Co., whose only claim to the lot was through Sword, as defendants' factum admits, "made a conveyance to the defendant company which, among other things, purported to convey the land in question."
It is not shown or pretended that the defendant company had or claimed to have any other title to the land in question. It must be borne in mind that this is not a controversy between the Government of Nova Scotia and the Government of Canada in respect to the title to this lot. Nor are the defendants claiming under the Government of Canada; nor is the Government of Canada in any way assuming or claiming title to this land. Therefore, I think the title of the Government of Canada is not involved in the discussion of the rights of the parties in this case.
The grant from the Government of Nova Scotia to Wm. Sword is a grant in fee simple. I think Sword had such a seizin under the grant from the Government of Nova Scotia, as that dower would attach against all persons claiming under such seizin, until such seizin should be avoided by the entry or action of the person having right. No paramount title in defendants is set up, or asserted, still less proved by defendants against the widow, and therefore in my opinion she is entitled to her dower. What could be more unjust than that defendants should claim the land under Sword's title and repudiate the title of Sword's wife, claimed under the same title?
No question arises as to improvements made on the land by the company subsequent to the death of Wm. Sword, because the judgment only decrees that:
It is ordered that the plaintiff do recover against the defendant her dower in the lands described in the writ of dower herein, the same to be assigned and laid off to her according to the value of said lands at the date of the death of William Sword, mentioned in said writ of dower, and that the plaintiff do recover against the defendant her costs to be taxed.
And plaintiff has not appealed against this.
But it is said the act of the local legislature, cap. 73 of the acts of 1881, bars her claim for dower in the property and restricts her claim to the recovery of compensation only for her right of dower. In the first place this statute has not been pleaded as I incline to think it should have been. But assuming it was not necessary to plead the statute, I cannot think it can in any way avail as an answer to this action.
I refrain from expressing any opinion as to the power of the local legislature to legislate in reference to Dominion Crown lands, because, in my view of this case, it is unnecessary to do so inasmuch as I think the local legislature has not done anything of the kind. I agree with the plaintiff's counsel that the act in question must be strictly construed, and I think it must be confined in its operations to lands other than Dominion Crown lands over which the local legislature had clearly power to legislate.
I think there is not any pretence for saying that the local legislature intended to interfere with Dominion land, and it may be admitted, under the authority of Holman v. Green[6], that the property in question at the passing of British North America Act belonged to the Dominion government. But assuming the local legislature had power to pass this act, what does it enact?
The purchase by and conveyance to the Sydney and Louisburg Coal and Railway Company made, &c., * * * are hereby absolutely ratified and confirmed, and the title to said leases and said real and personal estate and to the line of railway hitherto operated, &c., * * * and the lands whereon the same is situated, are vested in the Sydney and Louisburg Coal and Railway Company.
How can this apply to Dominion Crown lands? No mention whatever is made of the crown or the rights of the crown. If this statute was to operate at all, it would in the words of the statute absolutely ratify and confirm the purchase by and conveyance to the Sydney and Louisburg Coal Company and would vest the title to the lands, &c., in the Sydney and Louisburg Coal Company, but how could this act have this operation if the title to this land was in the crown. The crown is in no way named or referred to in the act, and without express words how is it possible the rights of the crown could be interfered with, and if the act could not have the operation which its clear unambiguous language indicates does this not show that the legislature did not intend to deal with property situate as this was, but only to property in which it had the right to vest an absolute title or estate.
Under all these circumstances I am very clearly of opinion that the widow of Wm. Sword is justly and legally entitled to her dower in the lands in question.
STRONG J.—This is an action of dower unde nihil habet in which the respondent claimed to recover legal dower out of certain land being part of the foreshore in the harbour of Sydney in Cape Breton. The defence insisted upon was that the husband was never seized. The writ alleges that William Sword, the demandant's huband, was seized of these lands in his demesne as of fee during the coverture. There is no formal plea traversing the allegation of seizin in the established form of a plea of ne unques seisiè que dower. The third plea denies possession, but that is not equivalent to a traverse of the averment of seizin. The fifth plea, however, may be treated as substantially such a plea, though informal. It alleges that the lands covered with water described in the writ are part of the navigable waters of Sydney harbour and were held by the demandant's husband under a grant from the province of Nova Scotia made since the 1st July, 1867, and contrary to the British North America Act. In the case of Holman v. Green[7] this court determined that the foreshore in harbours on the sea coast of the Dominion was vested in the crown in right of the Dominion and therefore could not pass under a provincial grant made since confederation. The law then declared has since been altered by statute, but in 1888 at the time this action was commenced and the plea referred to was pleaded it had not been so altered, and the statute in question has no retrospective effect. Therefore, although under the rules of special pleading this would be an argumentative traverse, yet as no objection was (even if it could have been) taken to the form of the plea, I am of opinion that it is an equivalent to a traverse of the seizin alleged by the demandant. The reply of the demandant took issue upon all the pleas and also replied an estoppel to the fifth plea.
Now upon the evidence it appears quite clear that the respondent's husband never was rightfully seized of the lands in question. The paper title proved consists of a grant from the crown to William Sword the respondent's husband under the great seal of the province of Nova Scotia, made upon the 22nd October, 1867, a conveyance by way of bargain and sale from W. Sword to the Glasgow and Cape Breton Coal and Railway Co., and a subsequent conveyance by the latter company to the present appellants the Sydney & Louisburg Coal and Railway Co. (Limited).
Apart from estoppel and from the statute to be afterwards mentioned, it is clear that no seizin is thus proved. The provincial grant was void ab initio and consequently no seizin passed by it to the grantee William Sword, the demandant's husband. We could not hold otherwise without either overruling Holman v. Green[8], or giving to the Dominion statute mentioned a retroactive effect against the crown which its language does not in any way warrant. The demandant's husband was therefore never seized of right. As regards seizin in fact, or wrongful seizin, that is out of the question, since the title was in the crown which cannot be disseised.
Then the replication to the fifth plea sets up an estoppel in this that the appellants claiming under and deriving title from the respondent's husband are estopped from denying his seizin. This defence is attemped to be supported by a reference to some Ontario cases by which we are not in any way bound and the soundness of which is, moreover, in my opinion open to question. The conveyance by William Sword to the Glasgow and Cape Breton Coal and Railway Company was what is technically termed an innocent conveyance, that is a conveyance not having any violent or tortious operation, such as a fine or feoffment formerly had; it follows that William Sword the grantor would not himself have been estopped by it. Bensley v. Burden[9]; also in note to Doe Irvine v. Webster[10].
Therefore as all estoppels must be mutual, the grantor not being estopped the grantees would not be estopped either; consequently there was not, so far as appears upon the face of the paper title, any estoppel binding on the appellants. Had the deed contained recitals alleging that the grantor was seized in fee it would have been different, for a grantor conveying even by an innocent conveyance is estopped by recitals, but no such recitals appear to have been contained in the deed in question. The deed did, it is true, contain covenants, and I am not unmindful that the court of Queen's Bench for Ontario in the case of Doe Irving v. Webster[11] decided that an estoppel could be created by the covenants in a purchase deed, but, whatever effect this decision may have in the province of Ontario it is not (binding upon us in deciding a Nova Scotia appeal, and since Jessel M. R. in the case of the General Finance Mtge. & Disci. Co. v. Liberator Permanent Benefit Bg. Socy.[12] decided exactly the reverse, and that for reasons which must commend themselves to every property lawyer, I do not see that we can properly disregard his great authority on such a point in the present case. A grantor, who purports to convey land to which he has no title, if he afterwards acquires title will, no doubt, be restrained by a Court of Equity from setting up his paramount title against his own grantees and will be compelled to make good out of the title so subsequently acquired the title which he had previously purported to convey. But this equity is one which is only enforced on proper terms and is something wholly different from legal estoppel.
I am, therefore, of opinion that the respondent entirely failed in making out the title by estoppel.
It is, however, lastly urged that the statute of Nova Scotia 1881, ch. 73 sec. 15, cures all defects in the conveyance and is conclusive in favour of the demandant. There are several objections to this. In the first place the statute is not pleaded. Next, although its effect should be to vest a title in the appellants; it has no retroactive effect so as to confer a seizin on the husband of the demandant. Thirdly, even granting that it was within the powers of the Nova Scotia legislature, under the authority to legislate regarding property, to vest a title in lands the seizin of which was in the crown, in right of the Dominion, in private owners, (a point on which I withhold any expression of opinion) yet on well established principles of construction this statute could not have any such operation. It has been repeatedly laid down that no statute shall be construed as affecting the crown or its property unless the crown is expressly named in it. Then no reference to the crown is to be found in the provincial act under consideration.
For these reasons I am of opinion that this appeal must be allowed with costs.
GWYNNE J.—The plaintiff by writ of dower claims dower in a piece of land described in the writ as a piece of land covered with water, situate in Sydney Harbour in the county of Cape Breton, of which piece of land, particularly described by metes and bounds in the writ, the plaintiff alleges that her deceased husband was during the coverture seized in his demesne as of fee. To this writ the defendants among other defences plead in substance that the land in the writ mentioned constituted part of the navigable waters of the Harbour of Sydney in the county of Cape Breton, and had been held by the plaintiff's husband only under a grant from the province of Nova Scotia since July 1st, A D. 1867, contrary to the provisions of the British North America Act, 1867. The object of this plea and its substantial effect was to assert that the plaintiff's deceased husband never had any estate in the piece of land covered with water, nor any thing more than a bare possession devoid of title for that the grant under which he had possession was null and void under the British North America Act as was adjudged by this court in a similar case in Holman v. Greene[13], and that Her Majesty in right of the Dominion of Canada was and is seised in right of her crown in the land in question as part of the harbour of Sydney. To this defence the plaintiff replied that she would object that the defendants ought not to be admitted to say that the said land covered with water mentioned and set forth in the plaintiff's writ is part of the navigable waters of the harbour of Sydney in the county of Cape Breton, and was held by plaintiff's deceased husband by through or under a grant from the province of Nova Scotia since July 1st, A.D. 1867, and contrary to the provisions of the British North America Act, 1867, because the defendant company acquired their title by or through the plaintiff's deceased husband, and said defendant company should be estopped from pleading his want of title as a defence. Now it is to be observed that the plaintiff in her writ of dower averred that the land in question was situate in Sydney harbour and by the above replication she in effect insists that the defendants should not be admitted to aver:
1st. That the land in respect of which the plaintiff claimed dower was situate in the harbour in which the plaintiff herself in her writ alleged it to be situate; and
2nd. That her deceased husband had held the land under a grant from the province of Nova Scotia since the 1st July, 1867.
Now supposing the question involved in this pleading to have been raised by a demurrer to the above replication, the question would simply be: Could the fact that those under whom the defendants claim received possession of the premises in question from the plaintiff's deceased husband operate as an estoppel in law to their insisting that the land out of which the plaintiff claims dower, as being a part of a public harbour of the Dominion of Canada, is by the constitutional act constituting this Dominion vested in Her Majesty in right of her crown for the public use and benefit of the subjects of the Dominion? So to hold would, in my opinion, carry the doctrine of estoppel beyond anything that is warranted by any decided case. But the question does not arise upon a demurrer to the above replication, for the case went down to trial upon several issues joined between the parties, and the plaintiff as part of her case produced in evidence a certified copy of an instrument purporting to be a grant of the land in question by the government of the province of Nova Scotia to the plaintiff's deceased husband, dated the 22nd October, 1867, for the sum of $50.00. The plaintiff thus asserted her claim upon the very instrument upon which by her replication she insisted that the defendants should be estopped from averring that her husband in his life time held the possession which he had of the land in question. She herself proved as part of her case what she insists the defendants should be estopped from averring. Upon her production of that instrument its construction and effect became matters submitted by the plaintiff herself to the judgment of the court which was bound by the judgment of this court in Holman v. Green[14]. The court could not be estopped from construing nor could the defendants be estopped from calling upon the court to construe, an instrument put in evidence by the plaintiff as part of her case and in virtue of which she claimed. The moment she put that instrument in evidence it became the duty of the court to construe it and to declare what effect it had as part of her case and her subsequent production of certified copies of an instrument purporting to be a deed of bargain and sale of the same land to the Glasgow & Cape Breton Coal and Railway Company, and of a deed executed by the Cape Breton Railway Company in liquidation to the defendant company could not withdraw from the court the duty of construing the first instrument which had been put in evidence by the plaintiff The defendants, while admitting that the deed of bargain and sale executed by plaintiff's deceased husband to the Glasgow & Cape Breton Railway Company passed to that company what possession he had, may well call upon the court to construe the effect of the instrument purporting to be letters patent from the province of Nova Scotia which the plaintiff has put in evidence, and may insist that having herself shown that the land in question is still vested in Her Majesty in right of her crown as the property of the Dominion of Canada, she has shown that the land is not land out of which she can have dower assigned to her. The doctrine of estoppel does not, as it appears to me, apply to such a case. If the doctrine did apply the plaintiff could, however, not claim dower but only damages under ch. 73 of the acts of the legislature of Nova Scotia in 1881 for such interest or such claim for dower which she had in the premises according to their value at the time of the execution of the deed of bargain and sale by her husband in 1871, for she could not while estopping the defendants from disputing her husband's title in the land under the provincial letters patent, being such as to give her a right to dower, insist herself that the provincial letters patent passed no title, and that the estate is still vested in Her Majesty in right of her crown for the purpose of insisting that the act of 1881 did not affect her.
In my opinion the appeal should be allowed with costs.
PATTERSON J.—I do not think that the Nova Scotia statute on which the appellants place so much reliance stands in the way of the recovery of her dower by the plaintiff.
The reasoning of Mr. Justice Meagher shows, conclusively to my mind, that the proper effect of the statute is to confirm what the deed of the tenth of January, 1881, professed to do, and that the right to compensation to which it restricts persons claiming any interest in or lien on the leases and real and personal estate at the time of the conveyance, is confined to compensation out of the fund set apart for that purpose in respect of properties in the second part of the schedule described, and does not touch the land now in question which the deed includes among the properties to which the title is recited as absolute.
But if this construction were not to prevail I still do not think the deed need interfere with the plaintiff's right to recover her dower. "Compensation" as it would then have to be read, would not be a very precise expression, and it would be given sufficient effect to by holding that the dower, in place of being set off by metes and bounds, should be commuted into a money payment, which is not an unusual mode of assigning dower.
Upon the main question I am of opinion, for the reasons given in the court below where upon this point the judges were unanimous, and now given by his lordship the Chief Justice, that the plaintiff is entitled to recover. She proves that the defendants hold under the grantees to whom her husband conveyed by deed professing to grant the land in fee, and whom he put in actual possession of the land. That by itself is sufficient proof of title as against the defendants. But it is said that because the plaintiff put in evidence a grant of the land to her husband from the province of Nova Scotia, and because the land, being part of the foreshore of the harbour, belonged to the Dominion under the British North America Act, the plaintiff herself proved that her husband was not seized. I do not agree with that idea. In strictness all that is necessarily to be inferred is that immediately after confederation the land had been the property of the Dominion. But if the fact is taken to be that the land is still legally vested in the crown in right of the Dominion, the result is that a paramount title is shown which might be asserted against the defendants, and of course against the doweress, but which the defendants have no right to assert. There is abundant authority for this. Mr. Justice Townshend cites a passage from Park on Dower[15] in which the proposition is laid down, and refers to an English case and an Upper Canada case which are in point. In Gaunt v. Wainman[16] the evidence relied on to prove the demandant's right to dower was proof of a conveyance of the premises to the defendant by the assignees in bankruptcy of the husband. It was held that that deed did not estop the defendants from proving that the husband's estate was a leasehold, but the mode of proving the primâ facie title was not questioned. The report of the case is very short. There was a fuller discussion in the Upper Canada case of Haskill v. Fraser[17] where the question was not complicated by anything corresponding to the fact in Gaunt v. Wainman (2) that the deed was not from the husband, though conveying his estate, and which case on the other hand turned chiefly on a question of pleading, it being held that the demandant ought to have pleaded the estoppel on which she relied—a point not raised in the present case and which under the existing system would be less formidable than it was thirty years ago. The decision was that the defendant was not estopped from showing that the husband was a joint tenant of the land and that his co-tenant had survived him.
Draper C.J. stated the general proposition that a person who accepts a grant is not estopped from saying that it does not pass so great an estate as it purports to convey, but only from saying that it passes no estate. In Roper on Husband and Wife[18] the law is thus laid down:—
Although it be generally necessary, as before appears, that the husband's seizin should be that of an estate of inheritance, yet it may happen that his widow may be entitled to dower when he was in fact seized of an estate for life or possessed for years only. But such title is defective since it springs out of the tortious act of the husband, as by his making a feoffment in fee. In such cases, however, the widow's right to dower will, it is presumed, be complete against the feoffee and the persons claiming under him; for the feoffee by accepting the conveyance admits that the husband was seized in fee and entitled to pass it; and the feoffee and such claimants are estopped from showing that the husband had a less estate, but as against the persons lawfully entitled to the lands upon the expiration of the husband's life estate or term for years the widow cannot claim dower, since they are not prevented from showing what interest the husband had in the premises.
I quote another passage[19] following a discussion of the effect of the husband's estate being subject to a condition:
In truth, in all other cases, if the husband's seizin be defeated by a lawful title existing prior to the marriage, his wife's initiate title to dower will determine with it; for when the person so entitled recovers the estate it will have relation back beyond the marriage, and be attended with the like consequences as the entry of a donor for condition broken.
It is true that the conveyance by Sword was not a feoffment and did not create a fee by wrong. The estoppel created by it had not so large an effect as to do more than, as shown by Draper C.J. in Haskill v. Fraser[20], prevent the grantees and those claiming under them from denying that some estate passed. Primâ facie the estate was in fee, but if it were in fact a less estate that might have been shown. No such thing, however, is attempted. The assertion is that no estate whatever passed, and that assertion is forbidden by the estoppel. I am not pressed by the objection that the plaintiff herself proves that her husband took under a title, ostensibly a grant in fee but liable to be defeated by a paramount title. The existence of a paramount title not, by itself, defeating the right to dower as against the husband's grantee, I do not see that it makes any difference whether the fact is shown by the plaintiff or the defendant. The plaintiff does no more than she would have (under the old system) done by her pleading, if as said in Haskill v. Fraser[21], the estoppel had to be pleaded. Her replication would admit the plea that her husband was not seized, and would aver that the defendant took under him, submitting that therefore the defendant should not be allowed to set up the truth.
I refer also to chapter 31 of Mr. Malcolm G. Cameron's very useful treatise on the Law of Dower.
I am of opinion that the appeal should be dismissed.
Appeal dismissed with costs.
Solicitors for appellants: Gillies & MacEchen.
Solicitor for respondent: E. J. Moseley.
[1] 23 N.S. Rep. 214.
[2] 3 Bing. N. C. 69.
[3] 15 Mass. 494.
[4] 6 Johns, 292.
[5] Pp. 344 & 346.
[6] 6 Can. S. C. R. 707.
[7] 6 Can. S.C.R. 707.
[8] 6 Can. S. C. R. 707.
[9] 2 Sim. & Stu. 519; S. C. 4 L. J. Ch. 164.
[10] 2 U. C. Q. B. at p. 260.
[11] 2 U. C. Q. B. 224.
[12] 10 Ch. Di. 15.
[13] 6 Can. S. C. R. 707.
[14] 6 Can. S.C.R. 707.
[15] P. 37.
[16] 3 Bing. N. C. 69.
[17] 12 U. C. C. P. 383.
[18] P. 368.
[19] P. 379.
[20] 12 U. C. C. P. 383.
[21] 12 U. C. C. P. 383.