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.
[Page 153]
Appeal from a decision of the Supreme Court
of Nova Scotia
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 and Small v. Procter on the question of estoppel.
Drysdale for
the respondent cited Hitchcock v. Harrington and Bigelow on Estoppel.
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
[Page 154]
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.
[Page 155]
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, 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
[Page 156]
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 this court determined that
the foreshore in harbours on the sea coast of the Dominion
[Page 157]
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, 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
[Page 158]
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;
also in note to Doe Irvine v. Webster.
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
decided that an estoppel could be created by the covenants in a purchase deed,
but, whatever effect this decision may have in the province
[Page 159]
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.
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
[Page 160]
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,
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
[Page 161]
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
[Page 162]
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.
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
[Page 163]
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
[Page 164]
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
[Page 165]
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 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
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 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.
[Page 166]
In Roper on Husband
and Wife
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
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, 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
[Page 167]
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, 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.
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