Maddison v. Emmerson

Maddison v. Emmerson
Collection
Supreme Court Judgments
Date
1904-04-27
Report
(1904) 34 SCR 533
Judges
Taschereau, Henri-Elzéar; Sedgewick, Robert; Nesbitt, Wallace; Davies, Louis Henry
On appeal from
New Brunswick
Subjects
Property law
Decision Content
Supreme Court of Canada
Maddison v. Emmerson (1904) 34 SCR 533
Date: 1904-04-27
W. Bruce Maddison (Defendant)
Appellant
And
Henry R. Emmerson (Plaintiff)
Respondent
1904: Feb. 24; 1904: April 27.
Present Sir Elzéar Taschereau C.J. and Sedgewick, Davies, Nesbitt and Kilatn JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK.
Crown land—Adverse possession—Grant during—21 Jac. I c. 14 (Imp.)—Information for intrusion.
Though there has been adverse possession of Crown lands for more than twenty years the Act 21 Jac. I ch. 14 does not prevent the Crown from granting the same without first re-establishing title by information of intrusion.
Judgment appealed from (36 N. B. Rep. 260) reversed, Davies J. dissenting.
Appeal from a decision of the Supreme Court of New Brunswick[1] refusing to set aside a verdict for for the plaintiff and order a new trial.
The defendant obtained a grant from the Crown of land of which the plaintiff had been in possession for 'more than twenty years, and the latter brought an action of ejectment and obtained the verdict sustained by the full court below. The only question raised on defendant's appeal was whether or not under 21 Jac I. ch. 14 the grant of the defendant was valid, the plaintiff's contention being that, before it could be issued, it was necessary for the Crown to regain possession of the land by information of intrusion which has always been the jurisprudence in New Brunswick. The statute as given in the text books and reports is shorn of its title, preamble and second clause, which are the key to its purpose and meaning. The statute in full is as follows:
"An Act to admit the subject to plead the general issue in informations of intrusion brought on behalf of the King's Majesty and retain his possession till trial.
"Where the King out of his prerogative royal may enforce the subject in information of intrusion brought against him to a special pleading of his title." The King's most Excellent Majesty, out of his gracious disposition towards his loving subjects, and at their humble suit, being willing to remit a part of his ancient and regal power, is well pleased that it be enacted; and be it enacted by the King's most Excellent Majesty, the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the authority of the same:—That whensoever the King, his heirs or successors and such from or under whom the King claimeth, and all others claiming under the same title under which the King claimeth, hath been or shall be out of possession by the space of twenty years or hath not or shall not have taken the profits of any lands, tenements, or hereditaments within the space of twenty years before any information of intrusion brought or to be brought, to recover the same: that in every such case the defendant or defendants may plead the general issue, if he or they so think fit, and shall not be pressed to plead specially: and that in such cases the defendant or defendants shall retain the possession he or they had at the time of such information exhibited, until the title be tried, found, or adjudged for the King.
"And be it further enacted, that where an information of intrusion may fitly and aptly be brought on the King's behalf that no scire facias shall be brought, whereunto the subject shall be forced to a special pleading, and be deprived of the grace intended by this Act." 17 Ed. II. stat. I. c. 13.
Powell K.C. for the appellant. Even if we assume, for the purposes of argument, that the respondent was in occupation of the land at the time the grant issued to the appellant, at common law the Crown could grant and the appellant could take the locus in quo. We submit that the rule, regarded either as existing at common law or by statute, that prevents a subject from alienating or his grantee from taking lands which at the time of the grant are adversely held by a third person, never applied to grants from the Crown of land of which the Crown had completed its title by obtaining possession in law. As to the means by which the King acquired, held and parted with his lands, see Encyc. Brit. (9 ed.) vo. "Doomsday Book." As to rights subsequently accrued to the Crown, they were established by being made matter of record. 4 Co. 54 b. Where the King's right did not appear by record but was dependent upon extraneous facts, inquest of office was resorted to, which "was devised by law as an authorative means to give the King his right by matter of record without which he in general can neither take nor part with anything." 1 Finch, L 423; Broom & Hadley's Com. vol. 3 p. 386; Chitty's Prer. ch. xii, p. 246; Scott v. Henderson[2]; Doe d, Hayne v. Redfern[3]; Doe d. Fitzgerald v. Finn[4]. Not only could the King acquire title to land by record alone, but he could also dispose of or alien his lands by record. Chitty's Prer. of the Crown 389; 3 Broom & Haldey 386; Finch L. 324; Jackson v. Winslow[5]. An intruder cannot oust the King but by matter of record; Co Litt. 277; Com Dig. Prer. D. 71; Wyngate v. Marke[6]; Louisburg Land Company v. Tutty[7], Goodtitle d. Parker v. Baldwin[8]. The contention that the statute of James deprives the Crown of the right to grant its land and its grantee to take under its grant when the land had been for twenty years in the possession of an intruder, has received such scant consideration from the courts of New Brunswick and Nova Scotia that, if we except the judgment of Chief Justice Tuck, three or four pages at most of the reports contain all the judicial discussion of it. The judgments, the appellant submits, are really assumptions, ventured, so far as the judgments themselves shew, without any attempt to construe the statute itself. The English cases, with the exception of Doe. d. Watt v. Morris[9], never were considered by the judges, except by Chief Justice Teck, and even he did not have his attention called to either the case of the Atty. Gen. v. The Corp. of London[10] or Goodtitle d. Parker v. Baldwin (4.)|.
The legislature never could have intended the word "possession" in the statute of James I, ch. 14, to have any other meaning than its loose popular meaning. It cannot be construed as giving to that word the significance of legal possession, for in such case the statute could not apply at all to an information of intrusion, which only lies where the King had the possession in law, and his method of recovering possession was; as has been shewn, either by ejectment or by scire facias. The statute merely effects procedure and confers upon the intruder, in cases coming within the statute, no legal estate whatever. If it does create a legal estate, it is a legal estate entirely contingent upon the filing of an information of intrusion and cannot confer any right in possession until that contingency happens. If the intruder is out of occupation or possession of the land he has no right against any person who takes possession and cannot bring an action of ejectment against him. Goodtitle d. Parker v. Baldwin[11]; Doe d. Carter v. Barnard[12]; Brest v. Lever[13]; Nagle v. Shea[14]; Asher v. Whitlock[15], See also "Law of Torts" by Clerk & Lindsell (2 ed.) 310. The weight of authority is that the presumption of title from possession in an action of ejectment may be rebutted by shewing that the title is in fact in a third person. To an action of ejectment, jus tertii is a good defence.
Anterior to 21 Jac. I. ch. 14, the King could grant, and his grantee took a good title in possession to, lands the title to which had once been perfected in him by possession without regard to the fact whether an intruder was in their occupation at the time of the grant or not. The statute of James relates solely to procedure and has made no change in the previous law whereby the King is placed under no disability to grant nor his grantee under any disability to lake what title the King has to his lands when an intruder has been in the occupation of them for twenty years. The case of Doe d. Walt v. Morris[16], cannot apply here as an authority for it merely decides that, owing to limitations in the procedure open to the King.(which limitations are by the provisions of the statute authorizing the sale in the particular case imposed upon his grantee), the intruder in that case could only be evicted from the granted land by an information of intrusion. That case proceeds upon a mistaken view of the remedies open to the King, and the King is not limited to evict an intruder from his land, It does not confer upon the intruder with twenty years occupation possession in law or any other estate in the land of the King. It can only confer an estate contingent upon the filing of an information and the finding of title in the King in the suit and dependent for its creation upon the act of the Crown in bringing a suit of information of intrusion. Even if does permit the intruder, after twenty years occupation of the lands of the King, to retain possession until dispossessed by an information of intrusion, the disability is one of remedy alone and when the grantee obtains possession in any way he is entitled to retain it. Title may be set up as a defense to a possessory action. An action of ejectment will not lie at the instance of an intruder, on Crown land against even a mere wrong doer, much less will it lie against the grantee of the Crown.
As to construction of statutes and authority of old decisions, we refer to Nagle v. Ahern[17]; Gwyn v. Hardwicke[18]; Pochin v. Buncombe[19]; Magistrates of Dunbar v. Duchess of Roxburghe[20]; Morgan v. Crawshay[21]; Tustees of Clyde Navigation v. Laird & Sons[22]; Feather v. The Queen[23]; Northeastern Railway Co. v. Lord Hastings[24]; Lancashire and Yorkshire Rway. Co. v. Mayor etc. of Borough of Bury[25]; Hamilton v. Baker[26]; Canadian Pacific Railway Co. v. Robinson[27]; Caldwell v. McLaren[28].
The King's right to grant the land to the appellant and his right to take a title to it must stand or fall on the principles of the common law. And by the common law, whether based on legal fiction, as is generally accepted, or on broad constutional principle, as Story intimates, the well settled rule is that the Crown can grant its land when in the adverse occupation, or if any person prefers to call it such possession, of an intruder, no matter how long that occupation or possession may have continued.
Pugsley K. C. and Friel for the respondent. It has always been the recognized law of New Brunswick since the earliest settlement of the province, that where there has been adverse possession of Crown land for upwards of twenty years it is necessary for the Crown to establish its title by inquest of office before it can issue a valid grant. Doe d Ponsford v Vernon[29]; Smith v. Morrow[30]; Murray v. Duff[31]; Scott v. Henderson[32]; Smyth v. McDonald[33]. The law is understood to be settled by Doe d. Watt v. Morris[34].
As to our right to bring ejectment, we also rely upon the decisions in Brovme v. Dawson[35]; Revett v. Brown[36]; Cholmondeley v. Clinton[37]; Doe d. Harding v. Cooke[38].
The true reason for the passing of the Statute 21 Jac. I cap. 14 was not merely to change the law as to pleading, which would be a most immaterial thing, but it was to afford protection to the subject who had been in possession adversely to the Crown for upwards of twenty years The protection afforded him was that, before he should be disturbed in his possession, there should be an information of intrusion and the title should be tried, found or adjudged for the King. While the previous portion of the section provides that in the case of an information for intrusion the defendant may plead the general issue and shall not be pressed to plead specially, yet this is not the essential part of the provision. The essential part is that "in such cases the defendant shall retain the possession he had at the time of such information exhibited, until the title be tried, found or adjudged for the King." The language of the section covers the case of other persons than the King claiming, and, although it is inartificially worded, the clear meaning is that, when there has been adverse possession against the Crown for upwards of twenty years, neither the King, nor any person claiming under him, shall be permitted to disturb the person in possession until after, upon an information of intrusion, the title has been found to be in the King. The statute was passed for benefit of the subject It was to protect the subject who had been in possession of land for over twenty years, against being disturbed in that possession until title had been asserted on behalf of the King and had been tried and determined. If, being out of possession for upwards of twenty years the Crown could be induced, as it might often be, improvidently to make grants to others, the effect would necessarily be to do away with the salutary object of the statute.
DAVIES J. (dissenting).—This was an action of ejectment brought by the respondent to recover possession of a mill site and premises of which he and his predecessors in title had been in undisputed possession for over forty-five years. The appellant (defendant) claimed under a recent grant from the Crown, obtained on representations and under circumstances which, apart from his legal contentions, would not entitle him to consideration at the hands of the court if it was open to the court to consider them. As the appeal comes before us it raises legal questions only, and the first one is whether the statute of 21 Jac. I, ch. 14, places any and what limitations upon the Crown in the assertion of its right as against intruders who have been over twenty years in undisputed possession of Crown lands; secondly, if it does, can the Crown ignore that statute and give a grant of the lands to a third party and in this way enable the grantee without trial, finding or adjudication, to oust the intruder from possession. And, lastly, whether this court will reverse a series of uniform decisions in the Province of Nova Scotia and New Brunswick in which courts of those provinces for fifty or sixty years past have followed a decision of the English Court of Common Pleas and held that in cases of such possession by intruders for over twenty years the Crown could not issue a legal grant of the lands to a third party but was obliged first to proceed by writ of intrusion to have its right to possession found and adjudged. The appeal therefore, if allowed, will not affect alone the interests of the immediate parties but will overturn what has been frequently and uniformly decided by the courts of those provinces to be law and, may, as shown by Mr. Justice Hanington in his able judgment, be followed by most lamentable consequences in many parts of New Brunswick. With these, however, we are not to trouble ourselves but to rest content with expounding the law as we conceive it to be. The far reaching consequences, however, of such a decision as we are asked by the appellant to give has necessarily induced us to give to the appeal a great deal of close attention and research. The result has been, so far as I am concerned, to convince me that the judgment appealed from and the series of decisions which it followed alike in Nova Scotia and New Brunswick were based upon sound law. On the first question, of the meaning and effect of the statute of James, we are not left to colonial authorities only. The case of Doe d. Watt v. Morris[39], decided by the English Court of Common Pleas as far back as the year 1835, is an authoritative and reasoned judgment (though perhaps not binding on us) on the very point. The unanimous judgment of the court was delivered by Tindal, C. J. and as this decision is the only English one upon the statute I cite from it as follows in order to show what was really there decided.
Referring to the general and acknowledged principle of the common law that the King can never be put out of possession by the wrongful entry of a subject, the Chief Justice goes on to say:
But it is to the statute 21 Jac. I. c. 14, that reference must be more particularly made, in order to determine the exact position and rights of the Crown as to the inclosures which are the subject of this action, at the time of making this contract. And by that statute it is enacted, "that wherever the King hath been or shall be out of possession by the space of twenty years, or shall not have taken the profits of lands, &c, within the space of twenty years before any information of intrusion brought to recover the same, in every such case the defendant may plead the general issue, and shall not be pressed to plead specially; and that in such cases the defendant shall retain the possession he had at the time of the information exhibited, until the title be tried, found, or adjudged for the King."
Now, the inclosures in question having been made and continued for more than twenty years before the contract, and during the whole of that period the occupiers of the same having been in actual, though wrongful, possession, and no part of the profits thereof having been taken by the Crown within the last twenty years, it follows necessarily from the enactment of the statute, that if the Crown at the time of making the contract has been desirous to regain the possession in fact, it must have brought an information of intrusion; and that if such information had been brought, and the defendant had pleaded the general issue, the defendant would have been entitled to retain the possession which he then had against the Crown, "until the title was tried, found, or adjudged for the KiDg." It was contended by Mr. Powell for the appellant that the Chief Justice's judgment, an extract from which I have just given, does not necessarily determine the substantial question whether the Crown could oust from possession by other means than by information for intrusion an intruder who had been for twenty years or more in actual possession of Crown lands. I should myself have had no doubt that the affirmative answer to the question must be drawn from the Chief Justice's reasoning. But if there was any doubt upon that point it seems to me to be removed by the concluding part of his judgment where he defines what the court did hold. He says:
We hold it unnecessary, therefore, to enter upon the discussion of the effect and operation of the statute of limitations upon the present action of ejectment, as we ground our judgment on the points of law before particularly mentioned; that the intruders, after twenty years' adverse possession, were protected even against the Grown itself, until a judgment in intrusion; that the commissioners were not empowered by the statute to sell any property of the Crown so circumstanced; and that there is nothing in this certificate of sale to shew that they intended so to do, even if they had the power.
Nothing could, in my judgment, be clearer or more definite on the very point on which this appeal turns, and I feel that I could not yield to the argument pressed by the appellant without over-ruling this decision in Doe d. Watt v. Morris[40]. In the part of his judgment previously quoted the Chief Justice had said:
If the Crown at the time of making the contract (which in the case at bar was issuing the grant to appellant) had been desirous to regain the possession in fact it must have brought an information of intrusion,
and if brought, then, as he says, the
defendant would have been entitled to retain the possession which he then had against the Crown "until the title was tried, found, or adjudged for the king." To my mind, nothing could be clearer than this and if it is the law the Crown could neither issue an effective grant or enter upon possession by its officers until it had successfully asserted its right on an information by intrusion.
Since that decision was given in 1835, no case can be found in England where it has been questioned or adversely commented on. The case is cited with approval in all the editions of Shelford's Real Property Statutes down to the latest in 1900. The learned author says, page 142 of the edition of 1874:
Although the King can never be put out of possession in point of law by the wrongful entry of a subject yet there may be an adverse possession in fact against the Crown. Therefore after such an adverse possession by a subject for twenty years the Crown could only recover land by information of intrusion. Consequently ejectment would not lie at the suit of the grantee of the Crown notwithstanding the rights of the Crown are not barred by the statutes of limitation.
If ejectment would not lie at the suit of the grantee of the Crown in such a case neither could he enter into possession as he did in this case and retain it as against the intruder having twenty years' possession, because such peaceable entry in order to be effective and change the legal possession can only be made by one legally entitled to possession. And as against an intruder having had twenty years' possession he is not entitled to such legal possession until it has been adjudged to and found for the Crown after and on the proper proceedings for intrusion. I cannot accept for one moment Mr. Powell's argument that the statutory right to retain possession until the Crown's right to regain it had been "found and adjudged" is a mere contingency beginning with the filing of an information and dependent for its creation upon the act of the Crown in bringing a suit of information of intrusion. Such a limited and narrow interpretation of the Statute of James is not only opposed to all the decided cases but is, in my judgment, directly opposed alike to the letter and the spirit of the statute. It would appear to me almost absurd to hold that the statutory right to remain in possession given to the subject who for twenty years had enjoyed it in fact was conditional upon the Crown bringing on information of intrusion and could be avoided by the Crown sending one of its officers to enter and take possession without form of law. Such a mode of repealing or avoiding in effect an Act of Parliament, passed for the benefit and protection of the subject, should not in my opinion be resorted to.
The redressing of injuries received by the Crown from the subject are, as is stated in the 3rd volume of Blackstone's Commentaries (marginal paging 257),
by such usual common law actions as are consistent with the royal prerogative and dignity and as he cannot be disseized or disposessed of any real property which is once vested in him he can maintain no action which supposes a dispossession of the plaintiff such as an assize or an ejectment.
The notes to Lewis' edition of these commentaries say that this reasoning would not apply to proceedings in ejectment where the King would be, in fiction, only lessor of the plaintiff.
But while Cole on Ejectment, page 62, mentions expressly an information of intrusion as the method by which the Crown may recover lands, nowhere is it stated that the Crown can bring ejectment, nor was the research of the appellant's counsel able to produce any precedents for such a practice. It would seem to me therefore that the Crown's proper, if not only, remedy to recover possession of lands held by an intruder for over twenty years would be by information of intrusion. In Blackstone's Commentaries again at page 259 of same volume it is stated
that it is part of the liberties of England and greatly for the safety of the subject that the King may not enter upon and seize any man's possession upon bare surmises. These principles and practice affecting the assertion of the Crown's rights were far more important and vital in the days of King James I. than they are to-day. But applying them to the construction of the statute in question they confirm me in the opinion which I think prevailed with the Court of Common Pleas when delivering their judgment in Doe d. Watt v. Morris[41], that the statute intended to assure to the bond fide occupant for over twenty years of part of the Crown demesnes security of possession unless and until the Crown's title had been found and adjudged after trial of an information of intrusion.
The Statute of James it is argued was strictly one relating to pleading and practice. It is quite true that that statute does not take away the estate or rights of the Crown or give any statutory title to the intruder. But it did more than merely regulate the practice or procedure because it guaranteed and assured to the intruder the integrity of his actual possession until the legal proceedings had ended in an adjudication of title in the King. It properly defined and regulated the methods by which the Crown rights could be maintained and established and it limited that method to a mode of procedure which would enable the Crown to weigh and determine any equitable rights which the intruder might bring forward, guaranteeing him meanwhile in peaceable possession.
It is not therefore a question whether the Crown was to lose or the intruder to gain an estate, but simply whether under the statute of James the twenty years occupant could be turned out of his possession until the completion of the proceedings prescribed by that statute. If the argument of the appellant is acceded to that even if the Crown is limited in the assertion of its rights to the statutory procedure prescribed its grantee is not so limited the statute would virtually be repealed and what seems to me to be one of its substantive provisions, namely, the guarantee of the intruder's possession, annulled.
The question now before us has been frequently the subject of judicial discussion and decision in the Provinces of Nova Scotia and New Brunswick.
It first arose incidentally in Nova Scotia in 1843, in the case of Scott v. Henderson[42]. The question in that case was whether the Crown could give a grant at all of lands which were at the time in the actual possession of an intruder. The court was equally divided in opinion on the point. Chief Justice Haliburton and one of his associates held that any such grant would be void. But the case of Doe d. Walt v. Morris[43] was cited with approval by one or more of the judges who, while divided in opinion as to the particular point before them, did not seem to have any doubt on the question now before us or as to the meaning of Ch. J. Tindall's decision, or the effect of twenty years adverse possession.
Afterwards, in 1863, the question came squarely before the Supreme Court of Nova Scotia in the case of Smyth v. McDonald[44], and was unanimously determined in the same sense as Doe d. Watt v. Morris (2). Sir William Young, the Chief Justice, and Dodd and Wilkins JJ. each delivered reasoned judgments on the point, and, so far as colonial judgments can settle any law, this question was supposed to be finally determined, and the decision of Smyth v. McDonald (3) has been accepted in that province as the law ever since.
In New Brunswick the same construction has always been placed upon the statute of James I. In the year 1843, in Doe d. Ponsford v. Vernon[45], the unanimous judgment of the court, then comprising Chipman C. J., Botsford, Carter and Parker JJ., was delivered by Ch. J. Chipman, who said:
The Crown * * having been so out of possession for twenty years anterior to the grant to the defendant in 1839, this latter grant by the operation of the statute 21 Jac. I. ch. 14, as expounded in the case of Doe d. Watt v. Morris[46] would not be valid without the Crown having first established its title by an information of intrusion.
The same question arose in the case of Smith v. Morrow[47], before a court consisting of Chief Justice Ritchie, afterwards Chief Justice of this court, and Allan, Weldon, Fisher and Wetmore JJ. and the court then held in the same way and to the same effect while at the same time most properly determining that
the possession necessary to prevent the Crown from granting or to prevent a grant actually issued from taking effect should be defined actual, continuous and unequivocal.
Afterwards, in Murray v. Duff[48], in 1895, the Supreme Court again in a reasoned judgment reaffirmed the position it had continuously maintained as to the construction of the statute. The present Chief Justice Tuck and Mr. Justice Barker reviewed all the cases on the subject, and the decision of the court there it was supposed for ever settled the question so far as New Brunswick was concerned.
The case of Doe d. Fitzgerald v. Finn[49]. is cited by the appellant as being at variance with Watt v. Morris (2), and with the decisions following it of the courts of Nova Scotia and New Brunswick. But while there is no doubt that Chief Justice Robinson took occasion in the course of his judgment in that case vigorously to criticise the judgment of the Court of Common Pleas in Watt v. Morris (2), as to the meaning and effect of the statute 21 Jac. I., c. 14, his remarks were merely obiter as he based his judgment upon other and different grounds That case of Doe d Fitzgerald v. Finn[50] was decided not upon the construction of the statute of James but upon that of the provincial statute, know as the Heir and Deyisee Act, and of the proviso in the Ontario statute of limitations declaring that time should not run against a grantee of the Crown until he had received notice of the occupancy of the squatter claiming by possession. While there was no want of vigour in Chief Justice Bobinson's observations upon the English decison of Doe d. Watts v. Morris[51], neither was there the slightest doubt in his mind as to what that case really decided.
The Chief Justice, in that case, after quoting the proviso in the Ontario statute, goes on to say:
Under this proviso the grantee of the Crown would not lose his estate by a trespasser continuing upon it more than twenty years unless he could be shewn to be aware of such occupation. Can we then suppose that the legislature imagined that the Crown was to lose its estate by reason of an occupation under circumstances exactly similar? I think it reasonable to hold that the legislature have in this proviso recognized it as a principle that there cannot reasonably be said to be any dispossession of waste or ungranted lands of which no one claiming title has ever yet taken possession.
But no such proviso was ever introduced into the legislation of New Brunswick, and I venture to think, after a careful perusal of the judgments of the court of that Province that no legislature could be found there to adopt the principle which Ch. J. Robinson found embedded in the legislation of Ontario and upon which he decided the case now in review.
But the appellant contends that as he, in the absence of the respondent, entered and took actual possession, the latter could not even with proof of forty and odd years undisputed possession maintain an action of ejectment against him or any other person who was able to get into possession, and for this he cites the case of Goodtitle d. Parker v. Baldwin[52] and other authorities. I do not agree to any such proposition. If it was law it would in many cases effectually repeal the Statute of Limitations. The cases cited by the respondent are authorities for the well known law that a defendant in ejectment can defeat the plaintiff's action by proving a jus tertii even although he does not claim under such third person but not by asking it to be assumed. That was the point decided in Doed. Parker v. Baldwin[53] audit is on that point the case is cited in the text books. There the ejectment was for part of the Forest of Dean. The statute of Charles II. had declared the title of that forest to be in the Crown and to be inalienable and Lord Tenterden held that the statute of limitations then in force, of Geo. III., did not repeal this Statute of Charles II. That was not a case to which the Crown or its grantee was a party and of course the statute of James was not cited or invoked. It did not go further than hold that the presumption of title from possession may be rebutted in an action of ejectment by evidence shewing affirmatively that the right to possession is in a third party. If the appellant's contention on this point was maintained the startling result would be that as all lands in British Provinces were originally vested in the King no recovery in ejectment could ever be maintained against a wrong-doer by any one under a possessory title short of sixty years. Such a decision would most effectually operate practically to repeal the statute and would be directly contrary to a host of decided cases. See Cole on Ejectment, p. 298; Doe d. Harding v. Cooke[54]; Holmes v. Newlands (4). The statute of limitations in force when Parker v. Baldwin[55] was decided only barred the remedy but did not extinguish the title. The later statute of 3 & 4 Wm. IV., of which the New Brunswick statute is practically a copy, expressly in its 34th section extinguishes the title. Jones v. Jones[56].
It does not transfer the extinguished title to the possessor it is true, but it creates a statutory right or title in the possessor which he can invoke as against all wrong-doers. As is said in the notes in Smith's Leading Oases (1895) 10 ed. pp. 700-1
So that if he (the former owner) enter after that period (the statutory limitation) he is a mere wrong-doer as against any person who happen's to be in possession
citing Holmes v. Newlands[57]; and again
and this section seems to have the collateral effect of giving the tortious possessor a title against all the world after the lapse of the prescribed period.
In Doe v. Sumner[58], Parke, B. said that the effect of the statute is
to make a parliamentary conveyance of the land to the person in possesssion after
the period of limitations has elapsed. And in Scott v. Nixon[59], Sugden, L.C. compelled an unwilling purchaser to take a title depending upon parol evidence of possession under the statute.
These remarks of course are applicable as between the claimant by possession and wrong-doers which the appellant would of course be unless his grant gave him a right to possession and they do not affect the Crown's rights of property which can only be extinguished by sixty years possession. But while it takes sixty years of possession to extinguish under the statute of limitations the title of the Crown, it only takes twenty years of such possession under the statute of James to stay the Crown from ousting an intruder on its lands until its title has been formally found and adjudged in the manner that statute prescribes.
Mr. Powell finally contended that even if his Crown grant was not good to enable him to maintain ejectment, still, that as a fact he had got possession and cannot be ousted. But in this I do not agree. The owner of land, it is true, who is entitled to the legal possession acquires that possession if he enters peaceably and is not obliged to resort to legal proceedings. But that assumes everything that is in dispute here. The plaintiffs suit is to eject appellant from a possession said to be unlawful. If my construction of the statute of James is correct, if the Crown could not give him a grant under which he would be legally entitled to enter and oust the intruder by ejectment, he certainly could not defeat the statute by walking upon the land in the owner's absence and asserting rights which the law only allows to owners legally entitled, to possession. Every plaintiff in ejectment must show a right of possession as well as of property and therefore the defendant need not plead the statute of limitations. Of course if the statute of James did not interfere with the Crown's right to possession even to the extent of providing that it could not be asserted as against one for twenty years in the possession in fact of the locus, then of course the Crown could grant and the grantee could bring ejectment or enter and take possession if he could do so peaceably. But that argument assumes everything in dispute.
There is one point more which I think the respondent can successfully invoke in this case, and that is that even if the decisions of the British Court of Common Pleas and the Supreme Courts of New Brunswick and Nova Scotia upon the meaning and object of the Statute of James were not such as this court would have approved of had the question been one res integra still they are conclusive as showing at least that the true construction of the statute is very doubtful and in all such cases this court will hesitate long, I take it, before overruling such a series of provincial decisions as we have here, based upon an English decision which for over half a century has stood unquestioned and uncriticised in England, and which has down to this day been approved and adopted by some of the leading text writers of Great Britain. For my own part, even if I disagree with the conclusions of of these various courts, I would without hesitation adopt the rule followed by Lord Westbury, Lord Campbell, Lord Herschell and other great law lords in the House of Lords and refuse to introduce the precedent of disregarding a uniform interpretation of an old statute upon a question materially affecting property and constantly recurring, and which interpretation even though I was inclined to quarrel with it had been adhered to for so many years without interruption. Morgan v. Crawshay[60]; Gorham v. Bishop of Exeter[61]; and Lancashire and Yorkshire Rway. Co. v. Mayor etc. of the Borough of Bury[62] in 1889.
The judgment of the majority of the court was delivered by
NESBITT J.—This is an appeal from the judgment of the Supreme Court of New Brunswick refusing the motion of the defendant below that the court set aside the verdict and finding of Mr. Justice Landry on the trial of the cause and pronounce a verdict for the defendant therein, and amend and give the postea and enter a verdict for the defendant and failing that to enter a non-suit and failing that that a new trial be granted.
The facts of the case are as follows:
This was an action of ejectment brought in the Supreme Court of the Province of New Brunswick by the plaintiff below against the defendant below for the recovery of the possession of a small lot of land, containing about ten acres, situate in the County of Westmoreland, in the Province of New Brunswick.
The defendant below claimed the land as grantee from the Crown. The plaintiff below claimed the land as against the defendant below by virtue of the possession of those through whom he claimed. About fifty-seven years before the issuing of the grant by the Crown to the defendant, one Somers entered upon the lot in question and erected a mill thereon. From the erection of this mill down to the year 1892, Somers and those claiming under him remained in actual occupation of the land but without any right from the Crown. In 1886 the land was mortgaged to the plaintiff who in 1892 sold the property under a power of sale contained in the mortgage. About the time of the sale the holder of the equity of redemption left the property. The plaintiff claims to have entered into possession after the sale, but he did not remain in continuous occupation of the land and was not in occupation of it at the time of the grant from the Crown to the appellant. After the land was granted to the appellant, he, the appellant, entered into and remained in peaceable possession of the same, and this action was brought by the respondent to recover the possession. At the trial the respondent relied upon the common law and contended that, the respondent having been in adverse possession of the locus in quo, the Crown could not grant it, and he also relied upon the statute 21 James