Miller v. Robertson, (1904) 35 SCR 80

Supreme Court of Canada

Miller v. Robertson (1904) 35 SCR 80

Date: 1904-04-27

John Miller (Defendant)

Appellant

And

George Robertson (Plaintiff)

Respondent

1904: Feb. 19, 23, 24; 1904: April 27.

Present:—Sir Elzéar Taschereau C.J. and Sedgewick, Davies, Nesbitt and Killam JJ.

ON APPEAL FROM THE JUDGE IN EQUITY OF NEW BRUNSWICK.

Court of equity—Title to land—Declaratory decree—Cloud on title—Injunction—New grounds of appeal.

A Court of Equity will not grant a decree confirming the title to land claimed by possession under the statute of limitations nor restrain by injunction a person from selling land of another.

The Chief Justice took no part in the judgment on the merits and Sedgewick J. dissented from the judgment of the majority of the court.

Per Taschereau C.J. Where leave to appeal per saltum has been granted on the ground that the court of last resort in the province had already decided the questions in issue the appellant should not be allowed to advance new grounds to support his appeal.

Appeal, per saltum, from a decision of the Judge in Equity of New Brunswick in favour of the plaintiff and maintaining an injunction to restrain defendant from selling the land claimed by plaintiff.

The bill in this case prayed for a decree declaring the rights and title of the plaintiff in and to certain land in Bathurst, N.B., and for an injunction to restrain defendant from advertising for sale or selling said land. Defendant had advertised a sale and a temporary injunction was granted, and the Judge in Equity ordered the title to be tried out in an action of ejectment which was done and resulted in a verdict for the plaintiff. Defendant then moved before the

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Supreme Court of the Province for judgment or a new trial both of which were refused The Judge in Equity then made the final decree declaring the plaintiff owner in fee of the land.

The Supreme Court of New Brunswick having decided the issues on the motion for a new trial defendant was granted leave to appeal per saltum.

Gormully K.C. and Fred. Taylor for the appellant. The decree granting the perpetual injunction is not warranted either in fact or in law. The onus of establishing adverse possession is on the party alleging it and the adverse possession must be clearly proved. The evidence of adverse possession must be clear, and mere unconnected acts of trespass are entirely insufficient for title to be barred by the Statute of Limitations. Handley v. Archibald[1]; Sherren v. Pearson[2]; McConaghy v. Denmark[3]; Poignand v. Smith[4]; Doe d. Des Barres v. White[5]; Proprietors of Kennebeck Purchase v. Springer[6]; Griffith v. Brown[7]; Pike v. Roberlson[8]. The authorities are that for title to a town lot to be barred by adverse possession, the evidence of unquestionable acts of ownership must be particularly clear; Bowen v. Guild,[9]; some jurisdictions even hold that the lot must be built on or fenced in: Garrett v. Belmont Land Co.[10]. The circumstances of the present case shew that this lot, on the sea-shore, was practically used by the public as part of the street, and unless there were some buildings or improvements of a more or less permanent character thereon, or some cultivation of the soil, it is evident that there could not be

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that exclusive and notorious adverse occupancy which the law requires. The doctrine of adverse possession is to be construed strictly and cannot be made out by inference but only by clear and positive proof. It also appears that the plaintiff and his grantors had no adverse possession of the lot between high and low watermark. While the tide was in, this portion of the lot was an open highway for the general public. Therefore the plaintiffs' possession could not be of that continuous character which is required to bar title by adverse possession: Mayor of St. John v. Littlehale[11]. The court, at the trial of ejectment, misdirected the jury; (a) As to what constituted a title; (b) By telling the jury that it did not appear that the defendant was in actual possession of the lot; (c) By directing the jury that acts of possession would be sufficient if they are acts done on the land which a man would be apt to do if he in fact owned it; and (d) By directing the jury that the evidence shewed that the possession of the plaintiff and his grantors in this case was not interrupted.

The findings of the jury do not authorize entering a verdict for the plaintiff and the learned judge was in error in so ordering. The findings are merely that the plaintiff and his grantors had been in actual and open possession of the lot from 1876 until the present time and, during that time, exercised acts of ownership over it. Even admitting these findings to be supported by the evidence, the facts so found are not sufficient to constitute title under the Statute of Limitations. The leading text writers establish that, to bar title by adverse possession under the Statute of Limitations, there must be an actual occupancy, clear, definite, positive and notorious. It must be continous, adverse and exclusive during the whole period

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prescribed by the statute and with and intention to claim title to the land occupied. Washburn, Real Property, (4 ed. vol. 3 p. 489: Angell, Limitations, (6 ed.) p. 410; Adams, Ejectment, (4 Am. ed.) p. 579.

In the present case there was no finding that this possession of the plaintiff and his grantors was adverse, continuous, actual, exclusive and under a claim of ownership.—all of which are necessary for the statute to apply. Nor was the attention of the jury called to these as requisite. Indeed, there could have been no such finding by the jury on the evidence. Consequently the plaintiff's case was not made out. Ward v. Cochran[12]; McConaghy v. Denmark[13]; Sherren v. Pearson[14]; Doe d. Shepherd v. Bayley[15]; Young et al. v. Elliott et al.[16]; Taylor v. Horde[17]; and note in 2 Smith's Leading Cases (11 ed.) 648.

The issue at law directed by the court was not carried out by the plaintiff in the spirit of the order, as, in his bill, the plaintiff claimed a documentary title and tried the issue on a claim by adverse possession.

The bill is without equity and the Court of Equity had no jurisdiction over the matter. Indeed, it is very doubtful under what head of equity jurisprudence the plaintiff attempted to bring himself. He alleges that the defendant Miller had instructed the defendant Kerr to sell the water lot and that he verily believes that the said defendants are maliciously endeavouring to annoy him and to cast a cloud upon his title. There is no allegation in the bill that it is probable that the defendants would sell the water lot or make any conveyance thereof; nor does the plaintiff allege that he believes that they will do so unless enjoined, but we are left with the bald statement that Miller has instructed

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Kerr to sell the lot. Even assuming that the sale would be an irretrievably ruinous matter as regards the plaintiff and his claim to the water lot, there are no allegations that such danger is of such imminent and probable nature as to warrant a recourse to a Court of Equity in aid of a legal right. Fletcher v. Bealey[18].

The bill prays an injunction restraining the defendants from casting a hypothetical cloud on the plaintiff's title to the lot. As regards casting a cloud on the title, the plaintiff, in his ejectment proceedings, admitted that he had no documentary title to the land, and in his proceedings as well as in the statement of claim on which they were based, contended that he was entitled thereto absolutely by reason of adverse possession for the statutory period. Accordingly, as the plaintiff had no title to the lot in question, any basis for a bill in equity to remove a cloud on title, or to prevent a cloud on title, is absolutely wanting. Even assuming that a court of quity would interfere under any circumstances, the plaintiff, in effect, by his own statement, had no title to be clouded.

In the second place, no precedent can be found where a bill in equity has been allowed against a party claiming a legal title to real property merely because of such claim being made. The rule stated by Page-Wood, V. C., in Talbot v. Hope Scott[19] is that the court cannot interfere with a legal title of any description unless there be some equity by which it can affect the conscience of the defendant. As the plaintiff's right is one clearly triable at law, there is no ground for a court of equity interfering. Earl of Bath v. Sherwin[20].

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The decision in the present case, if correct, would establish that a party can force another to contest, in equity, a legal right at a time that is entirely in his own discretion. No precedent can be found for such a doctrine. Best v. Drake[21].

Here there had been no previous verdict; but, on the other hand, the plaintiff had brought an action against the defendant Kerr and discontinued, paying defendant's costs—precisely the reverse of Best v. Drake (1); and yet, in Best v. Drake (1), the Court of Chancery held that it had no jurisdiction This is a fundamental principle of equity; Brooking v. Maudslay Son & Field[22].

Then, the issue ordered was futile; Browne v. Smith[23]; and the form of the decree is wrong, and in this case a bill quia timet cannot lie. We also refer to Hayward v. Dimsdale[24]; White v. Mellin[25]; Bonnard v. Perryman[26]; Ansdell v. Ansdell[27]; Shepherdson v. McCullough[28]; Harris v. Mudie[29] at page 422; Ontario Industrial Loan Co. v. Lindsey[30]; Buchanan v. Campbell[31]; and Truesdell v. Cook[32].

Teed K. C. for the respondent. The substantial question is, who had the better title or right to the bank or shore lot? The question of title was litigated and tried as between the appellant and respondent in the action of ejectment and found in favour of the respondent, that finding was confirmed by the Supreme Court of New Brunswick en banc, and the question was thereby res judicata as between the parties. If the appellant was dissatisfied therewith he should have appealed to this court from the decision on the ejectmerit,

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and not having done so, he is precluded from questioning or impugning it on this appeal.

When the matter came before the judge in equity upon the hearing, when the decree in equity appealed from was pronounced, he was bound by the decision of the full court in the ejectment action that the title was in the respondent, and was bound to follow that decision, and make a decree in accordance therewith The Supreme Court is the court of appeal from the Equity Court, and how could the judge in equity, upon the same identical questions both of law and fact, declare that this decision given on the same case and questions by his immediate court of appeal was bad and wrong, and how could he make a decree contrary thereto? The judge in equity was bound by the decision of his immediate court of appeal, and therefore his decision is right, or at all events it does not lie in the mouth of the appellant to say it is wrong. Under the old English chancery practice, an issue or action at law tried by order out of chancery was not determined by a court binding upon chancery, and therein lies the distinction between that practice and the practice in the present case. How could the judge in equity under the facts and evidence before him, decree that the title was other than in respondent. The practice as laid down in Daniel and in Smith on Chancery Practice is, that upon the suit coming on for hearing on further directions, after the trial of an action or issue at law, the only evidence of title offered is the postea in such action or issue. There was nothing before the judge in equity to shew that it was erroneous.

This appeal is taken from the decree in equity only, and not from the decision in the ejectment action. Such last mentioned decision, therefore, stands unimpeached and that decision, being the judgment of a

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superior court, and the final court of appeal for the province, cannot be attacked collaterally in this appeal but is final and conclusive until directly appealed from and reversed.

The respondent further contends that the decision in the ejecment action, and the decree appealed from, based thereon, are correct;—(a) Because under the evidence on the trial, the respondent made out a full and complete title by possession for over twenty-five years by himself and those under whom he claimed, and therefore, was entitled to recover; and—(b) That even if the respondent had not made out a possession for twenty years, he at all events, proved a possession prior to that of the appellant and is entitled to recover. Prior possession, though less than twenty years, is sufficient to recover against one without title. Asher v. Whitlock[33].

The order of the Equity Court under which the action of ejectment was brought directed the bringing of that action to try the title, and in no event should the case be tested by the old rules relating to the trial of ejectments whereby it was urged or held that a plaintiff in ejectment must fail if the legal title was shewn outstanding in some one else. The respondent submits that the legal title, in whomsoever vested, was extinguished by the possession of the respondent, and those under whom he claimed. The meaning of the decree directing the action of ejectment was to try which of the claimants had the better right to the land in dispute. The appellant proved no title or right of any kind whatsoever to the lot in question; no pretence of proof of possessory title; no proof of documentary title from any one that ever owned or possessed it. The bill has equity in substantially alleging that the defendants had put a cloud upon the title. For

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this there is no remedy at law and recourse must be had to a court of equity. The practice in New Brunswick is to order an issue in ejectment to inform the conscience if the Court of Equity. This was the old English practice. See remarks of Eldon L. J. in Pemberton v. Pemberton[34].

THE CHIEF JUSTICE (dissenting).—In this case I understand that we are all of opinion that upon all the points of law or of fact taken in the courts below the appeal should be dismissed. But the majority of the court are of opinion that we should allow the appeal upon a ground admittedly never taken in the courts below. Now, this is an appeal per saltum granted by the registrar though strenuously opposed by the respondent. In my opinion, under such circumstances, no new point of law is open to the appellant. We should not so easily give to an appellant the right to constitute this court a court of first instance. It is rather singular, not to say more, for an appellant to obtain leave to appeal per saltum upon the ground that the provincial court of sppeal has passed upon the points involved, and subsequently to be allowed to raise a new point in this court.

I do not take part in this judgment.

SEDGEWICK J., also dissented from the judgment of the majority of the court.

The judgment of the majority of the court was delivered by:

NESBITT J.—This action was begun by a bill in equity the plaintiff seeking to have the defendant restrained by an injunction from advertising for sale, or selling, or conveying, or professing or pretending

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to sell or convey a certain water lot in the Town of Bathurst and also praying for a decree declaring his rights in and title to said lot. Subsequently an order was made for the plaintiff to bring ejectment against the defendant. Ejectment was according brought and a verdict was rendered in favour of the plaintiff, and the record is indorsed stating that the jury had found that the plaintiff, on the 5th July, 1901, was and still is in possession of the land as in the writ alleged. Afterwards, the Judge in Equity, no counsel appearing for the defendant, granted a decree the material part of which is as follows:

Whereupon, and on hearing the plaintiff's bill, the record and postea in the ejectment suit read, and what was alleged by the said counsel for plaintiff, it is now declared that the plaintiff, George Robertson, is absolutely entitled in fee simple to the water lot or shore lot situate in front of the Robertson Hotel, in the Town of Bathurst, in the County of Gloucester, and hereinbefore and in the plaintiff's bill mentioned, and it is ordered that the defendants John Kerr and John Miller mentioned, and each of them be and they and each of them are hereby perpetually enjoined and restrained henceforth altogether and absolutely from advertising for sale or conveying or professing or pretending to sell, assign or convey the said water lot or shore lot.

An appeal was allowed per saltum to this court. I I do not think that we are at liberty to discuss the evidence at the trial or to consider whether the charge of the learned trial judge and the finding of the jury was correct; and I think, therefore, the point shortly turns on whether or not the bill was demurrable for want of equity.

That objection to the making of a decree could be taken on that ground at the hearing, notwithstanding that the defendants had answered and had not demurred, is clear. See Jones v. Davids[35]; Hollings-worth v. Shakeshaft[36]; Webb v. England[37]; Ernest v. Weiss[38]; Morocco Land and Trading Co. v. Fry[39].

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In some of these cases costs were refused on a dismissal of the bill at the hearing, upon the ground that the defendant could have raised the defence by demurrer. Substantially what is in dispute is the title to the lot in question, across the road from the hotel of the plaintiff, which the plaintiff claimed to have obtained a title to by various acts of possession and for the purposes of this judgment he must be presumed to have obtained such title, although if we were at liberty to discuss the evidence I think a very different result would follow. The defendant, Miller, also claimed to be the owner and issued the following advertisement:

I will sell at public auction in front of the Telegraph Office in Bathurst, on Saturday, January 27th, at eleven o'clock a.m., the water lot owned by the late William End fronting on Water Street, in five lots forty feet each in breadth. Terms ten per cent of purchase money to be paid at sale, balance on delivery of deed, about ten days afterwards.

N.B.—The sale of the above named lot was postponed last August on account of Mr George Robertson bringing a suit in the Supreme Court claiming title. He has discontinued his suit and paid costs.

(Signed) JOHN KERB, Auctioner.

BATHURST, 19th January, 1900.

Whereupon the plaintiff filed his bill in equity as 1 have before stated. I can find no authority for the interference of the Court of Equity in such a case. A most interesting discussion of when the court will interfere on behalf of a plaintiff in possession against a defendant not in possession and claiming possession and threatening to come upon the estate is shewn in the case of Lowndes v. Bettle[40], where Vice Cancellor Kindersley reviews all the authorities. I find no case that goes further than that case, and in the United States it seems there is no general rule that can be relied on as determining what constitutes such a cloud

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on a title as would authorize the interference of the Court of Equity for its prevention. Generally an action at law or a suit in equity will not be entertained unless there is an actual disturbance of right, Exceptions to this rule are and have been long recognized in a Court of Equity, and the jurisdiction of that court is often exercised to prevent as well as to redress injury. A mere fear of suit, or that any one merely questions one's title, or even asserts a hostile title, will not justify the court in intervening and cause litigation which might not otherwise arise. A sale of the land of the true owner as the property of a mere stranger with whom he is not connected from whom he does not mediately or immediately trace title cannot cast a cloud on his title. See Armstrong v. Sanford[41]; Montgomery v. McEwen[42]; Pixley v. Huggins[43]; Welch v. May[44]. In Ontario, Sir Henry Strong, then Vice Chancellor, in Truesdell v. Cook[45], said as follows:

I am of opinion that in a proper case where the plaintiff having a legal title has done all he can to assert his title at law, a bill may be maintained in this court to compel the delivering up of a deed which appears to be void at law, provided it is a registered instrument. I find no authority for saying that the existence of an unregistered deed, passing no interest, and not appearing to be a link in the title, can give ground for the jurisdiction"; but the registration has such a tendency to embarrass the title of the true owner that there would be a great want of remedy if this court could not decree cancellation in such a case.

No higher authority than the learned Vice Chancellor upon equitable doctrines can be cited in this country. See also Ontario Industrial Loan and Investment Company v. Lindsey et al.[46].

In New Brunswick the doctrine that conveyances of land in the actual adverse possession of another are

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void is still in force. Upon the allegations of the bill any conveyances which the defendant Miller might make would be void as against the plaintiff.

While I agree that the Court of Equity will always mould its decrees to meet changing circumstances, I think we should not bring the court into the reproach that equity was measured by the length of the chancellor's foot by departing from apparently well settled doctrines. I agree with the view expressed by my brother Sedgewick that the court will always leave the right open for interference in any case where it is deemed necessary in the interest of justice to prevent the placing of a cloud on a title of any one, but I do not think this case calls for the intervention of the court.

The appeal should be allowed and the plaintiff's bill of complaint dismissed, but without any costs of the suit or of the appeal, as the defendants did not raise the objection to the maintenance of the suit either by demurrer or at the hearing or otherwise in the court below.

Appeal allowed with costs.

Solicitor for the appellant: Geo. G. Gilbert.

Solicitor for the respondent: M. G. Teed.