Supreme Court of Canada
Rooker v. Hoofstetter, (1896) 26 S.C.R. 41
Date: 1896-02-18
William H.A. Rooker (Defendant) Appellant;
and
Amelia Hoofstetter (Plaintiff) Respondent.
1895: October 19; 1896: February 18.
Present: Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
Mortgage—Agreement to charge lands—Statute of frauds—Registry.
The owner of an equity of redemption in mortgaged lands, called the Christopher farm, signed a memorandum as follows:—”I agree to charge the east half of lot no. 19, in the seventh concession of Loughborough, with the payment of two mortgages held by G.M.G. and Mrs. R. respectively, upon the Christopher farm * * * amounting to $750 * * * and I agree on demand to execute proper mortgages of said land to carry out this agreement, or to pay off the said Christopher mortgages.”
Held, affirming the judgment of the Court of Appeal, that this instrument created a present equitable charge upon the east half of lot 19 in favour of the mortgagees named therein.
The solicitor of the mortgagee wrote the memo. on one of his letter forms under the printed words “Dear Sir,” his own name being at the bottom on the left side and he made an affidavit, as subscribing witness, to have it registered. Lot 19 having been mortgaged to another person, one of the mortgagees of the Christopher farm brought an action to have it declared that she was entitled to a charge or lien thereon, in which action it was contended that the solicitor was not a subscribing witness but only the person to whom the letter was addressed.
Held, affirming the judgment of the Court of Appeal, that the solicitor signed the agreement as a witness and the registration was, therefore, regular, but if not, as the document was upon the registry the subsequent purchaser had actual notice by which he was bound notwithstanding the informality in the proof of execution, which did not make the registration a nullity.
Held, per Taschereau J., that the agreement did not require attestation and if the solicitor was not a witness it should have been indorsed with a certificate by a county court judge as required by R.S.O. (1887) c. 114, s. 45, and it having been registered the court would presume that such certificate had been obtained.
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APPEAL from a decision of the Court of Appeal for Ontario, reversing the judgment of the Divisional Court in favour of the defendant.
The material facts of the case are as follows:—
On the 30th day of December, 1886, William H. Christopher conveyed by way of mortgage the northwest ¼ of lot 16, in the 9th concession of the township of Storrington, to the respondent to secure the sum of $350 and interest.
On the same day the defendant, Hughson, gave the respondent a bond in the penal sum of $700, conditioned that Christopher should pay the mortgage.
Subsequently, on the 3rd day of April, 1888, Christopher conveyed his equity of redemption in said lands to the defendant, Hughson, for the sum of $2,500, subject to this mortgage, the assumption of which formed part of the consideration.
Between the defendant, Hughson, and Christopher it was understood that the former should pay the mortgage debt, and between themselves Christopher became the surety merely, and Hughson thenceforth the principal debtor.
On the 14th day of March, 1893, the mortgage being in default, the defendant, Hughson, signed the following memorandum:
“KINGSTON, March 14, 1893.
“I agree to charge the east half of lot number (19), in the seventh (7) concession of Loughborough, with the payment of the two mortgages held by G.M. Grant and Mrs. Hoofstetter, respectively, upon the Christopher farm, being the north-west ¼ of lot sixteen, in the first concession of Storrington, amounting to $750 and some arrears of interest, and I agree on demand to execute
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proper mortgages of said land to carry out this agreement, or to pay off the said Christopher mortgages.
(Sgd.) J.H. HUGHSON.”
(Sgd.) G.M. MACDONNELL.
The witness, Macdonnell, and Mr. John Mudie were members of a legal firm named Macdonnell & Mudie, and the memorandum signed by Hughson was written on their letter paper, which had the usual printed or lithographed heading giving the name and address of the firm, a blank for the date, and a lithographed “Dear Sir.”
On the 3rd day of July, 1893, Mr. Macdonnell made an affidavit, which was annexed to the foregoing memorandum, as follows:
I, George Milnes Macdonnell, of the city of Kingston, in the county of Frontenac, solicitor, make oath and say:
1. I was personally present and did see the annexed instrument duly signed and executed by John H. Hughson at the city of Kingston aforesaid.
2. That I know the said parties.
3. That I am a subscribing witness to the said instrument.
Sworn before me at the city of Kingston, in the county of Frontenac, this 3rd day of July, 1893.
(Sgd.) G.M. MACDONNELL.
(Sgd.) J. MUDIE,
A Commissioner, &c., in H.C.J.
Upon this affidavit the memorandum was registered in the registry office of the county of Frontenac on the same day.
Afterwards, on the 15th day of the same month, Hughson conveyed the east ½ of lot 19, in the 7th concession, to Johnston, and Johnston mortgaged the said lands to the appellant. The respondent seeks to enforce
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the registered memorandum against the appellant’s registered mortgage.
At the trial the Chancellor gave judgment for the plaintiff, which judgment was reversed by the Divisional Court. The Court of Appeal restored the judgment of the Chancellor.
Smythe Q.C. for the appellant. This writing does not constitute an agreement to charge lot 19 within the statute of frauds, the party with whom it was made not being disclosed; William v. Jordan; Williams v. Lake; and there being no consideration; Agnew on the Statute of Frauds.
It was a mere agreement to give a mortgage, and gave the persons named no right of action. Wolverhampton Railway Company v. London & North-western Railway Company; Osborne v. Henderson; Re Clarke and Chamberlain.
It is not shown that time for payment was given. Ryan v. McKerral; Merchants’ Bank v. Robinson.
Langton Q.C. for the respondent. The parties sufficiently appear from the agreement. Newall v. Radford; Morton v. Tewart.
As to the instrument creating a charge on the land see In re Beetham.
TASCHEREAU J.—I would dismiss this appeal. I agree in my brother Gwynne’s reasoning in that sense. I desire to add a single remark on the point urged by the appellant, of the invalidity of the registration if Macdonnell were a party and not a mere witness to the memorandum of the 14th March, 1893. Under sec. 45
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of the Revised Statutes of Ontario, ch. 114, a document not attested, where attestation is not necessary as in the case of this document, may be registered, but then it must be indorsed with a certificate of execution by a county court judge; now, here, that certificate does not appear, but omnia praesumuntur rite et solenniler esse acta donec probetur in contrariam, and it must be assumed that the registrar would not have registered the document if not accompanied with the required certificate. Assuming, therefore, that Macdonnell’s affidavit of execution as a subscribing witness was a nullity, and looking at the document as having been registered without Macdonnell’s affidavit, the registration is not, upon that reason alone, to be held invalid. The proof of execution must be assumed to have been given before the county court judge.
GWYNNE J.—In the view taken by Mr. Justice Osler as to the form of the document upon which the question in this appeal turns and in his judgment thereon I entirely concur.
That document operated as a present equitable charge upon the lands mentioned therein to the amounts due under the two mortgages mentioned therein. That Hughson was bound thereby there cannot, I think, be any doubt, and if Hooker had actual notice thereof he would have been equally bound, and the document having been registered before Hooker acquired his interest he is by statute bound equally as if he had actual notice. As to the objections as to informality in the registration or rather in the mode of proving the execution of the document in order to obtain registration of it, I entirely agree with the judgment of Mr. Justice Maclennan that the appellant could not take advantage of any such informality if any there be. The statute makes the registration of certain documents as equiva-
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lent to actual notice to purchasers of the execution of such documents; and if any of such documents is executed so as to be binding upon the party executing it a subsequent purchaser from such person cannot set up a mere informality in the mode of proof for registration as nullifying the statutory effect which is given to the fact of registration. The object of the statute is to make every purchaser of an interest in lands in order to his own security to search the registry of titles, established by law. If he does do so and finds a document in point of fact upon the registry relating to the lands he is about acquiring an interest in, he seems to me to acquire thereby actual notice of such document by which he must be bound although he may discover some informality in the mode of proof which may have escaped the notice of the registrar or which he may have deemed immaterial, and therefore notwithstanding the informality registered the document, and if such purchaser fails to search the registry he must accept the fact of registration as equivalent to actual notice unless at least the objection taken constitutes an absolute defect in the proceeding, as for example the absence of any affidavit of execution would perhaps have to be held to be a defect constituting nullity in the registration.
SEDGEWICK, KING and GIROUARD JJ. concurred.
Appeal dismissed with costs.
Solicitors for the appellant: Smythe, Smith & Lyon.
Solicitors for the respondent: G.M. Macdonnell.
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