Supreme Court of Canada
Clark v. Phinney (1896) 25 SCR 633
Date: 1896-02-18
Charles A. Clark et at (Defendants)
Appellants
And
Phineas D. Phinney (Plaintiff)
Respondent
1895: Oct. 26, 28, 29; 1896: Feb. 18.
Present—Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Nova Scotia Probate Act—R. S. N. S. 5 ser. c. 100; 51 V. (N. S.) c. 26—Executors and administrators—License to sell lands—Estoppel—Res judicata.
An executrix obtained from the Probate Court a license to sell real estate of a deceased testator for the payment of his debts. Judgment creditors of the devisees moved to set aside the license but failed on their motion and again in appeal. The lands were sold under the license and the executrix paid part of the price to the judgment creditors, and they received the same knowing the moneys to have been proceeds of the sale of the lands. Afterwards the judgment creditors, still claiming the license to be null issued execution against the lands, and the purchaser brought an action to have it declared that the judgment was not a charge thereon.
Held, that the judgment upon the motion to set aside the license was conclusive against the judgment creditors and they were precluded thereby from taking collateral proceedings to charge the lands affected, upon grounds invoked or which might have been invoked upon the motion.
Held further, that the judgment creditors, by receiving payment out of the proceeds of the sale, had elected to treat the license as having been regularly issued, and were estopped from attacking its validity in answer to the action.
Appeal from a decision of the Supreme Court of Nova Scotia, dismissing the plaintiff’s appeal from the judgment of the court below.
The fact and questions raised in the case will be found in the head-note and the judgments reported.
[Page 634]
Roscoe for the appellant. The Probate Court could only revoke the license on grounds mentioned in the statute. In re Suffield; In re Walton; United States v. Arredondo.” We can, therefore, attack the license in this proceedings on grounds not open to us in the Probate Court as not being in the statute. Hobbs v. Henning; Castrique v. Imrie.
The inherent power of a court to control its own process does not apply to a judgment. Cocker y. Tempest..
There was no election by appellant on receipt of part of the purchase money there being no inconsistent rights calling therefor. Codrington v. Codrington. If the license was void there could be no election. Sheddon v. Goodrich; Carratt v. Morley.
J. J. Ritchie Q.C. for the respondents. The license cannot be attacked in a collateral proceeding. Doe d. Sullivan v. Currey; Beauregard v. City of New Orleans.
The judgment refusing to revoke is conclusive. Henderson v. Henderson; Beloit v. Morgan.
The appellant having accepted the money is estopped from claiming against the land. Wood v. Reesor.
TASCHEREAU J.—I concur in the judgment of Mr. Justice Sedgewick. The appeal should be dismissed with costs.
GWYNNE J.—I am not prepared to hold that if there had been no. petition to revoke the license granted by the judge of probate of the 27th April, 1891, that the license itself, and consequently any sale made
[Page 635]
thereunder, would be nullities for insufficiency, as is contended, in the affidavit of the executrix and trustee of the will of Joseph Clark upon her application for the license. I cannot say that the affidavit, assuming it to be true as there alleged that the personal estate of the deceased was wholly insufficient for the payment of his debts, was not a sufficient compliance with the statute so at least as to prevent the license granted thereon being an absolute nullity; but in the proceedings taken upon the citation to revoke the license issued upon the petition of the present defendants, who were the executors and trustees of the will of James Clark, deceased, all insufficiency, if any there was, in the affidavit of the executrix and trustee of the will of Joseph Clark was removed, and the adjudication of the probate judge pronounced upon that citation, which was affirmed on appeal, constituted in my opinion an effectual and final confirmation of the grant of the license, which was by the judgment on the citation adjudged to be absolutely necessary and in the interest of the estate, and the executrix and trustee of Joseph Clark was thereby authorized to proceed thereunder.
Then as to the objection that the license is null and void inasmuch as it purports to authorize
the sale of all and every the real estate of the said Joseph Clark, deceased, which he had held or was interested in or entitled to at the time of his death, or so much and such parts and portions of said real estate as may be found sufficient for the full and final discharge of his said debts,
without specifying some particular piece of real estate, it is to be observed that the license in this respect follows the words of the statute, and cannot therefore, in my opinion, be held to be null and void upon that ground. Then as to the objection raised by the statement of defence to the plaintiff’s action, namely, that the said Joseph Clark was not seized in fee
[Page 636]
simple absolute of the piece of land, his estate and interest in which was sold to the plaintiff, but only of an undivided estate therein as a tenant in common, the only point raised by this defence was that the interest of a tenant in common in the land held in common could not be sold. The statute says that a sale under the license shall have the same effect as if made by the deceased in his lifetime; and there can be no doubt that if a tenant in common should sell the whole of his interest in land held by him in common with another or others, the estate of the grantor would so pass to his grantee as to make the latter tenant in common with the other, or others, according to the interest of the grantor.
Of this there can be no doubt, that the interest of the grantor so sold was his whole interest in the land in common, and the statement of defence in the present action so treats the case as regards the land, Joseph Clark’s interest in which was what was sold to the plaintiff, but in the argument before us the contention was that in point of fact what was sold was Joseph Clark’s interest in one half of the land which he held in common with his deceased brother James. This, as I have already observed, was not the point raised by the statement of defence; but regarding the deed as one made by Joseph Clark in his lifetime, and as being of all his interest in only one-half of the estate held in common, although not so put in issue, still such a conveyance by Joseph would have been unquestionably good and binding as against his heirs and devisees and all persons claiming as his or their creditors; it could not, of course, prejudice the co-tenant or co-tenants or affect injuriously their right, but with them we have no concern in the present case; but as regards them I have no doubt that upon a severance of the estate in common by the courts they would have ample power
[Page 637]
to protect the interests of the co-tenants from all injury, as also of the grantee of one of them of his interest in a part only of the estate held in common.
I am of opinion, for the above reasons, that the appeal must be dismissed with costs.
SEDGEWICK J.—On the 25th July, 1885, one Joseph Clark died. At the time of his death he was the owner, as tenant in common with his brother James Clark, of certain lands at Granville, Annapolis County, N.S. By his will he appointed his widow, now Hannah Vail, executrix, and he devised his real estate to his brother James Clark for life, remainder to his brother Charles Clark, his sister Rachel Clark, and his nephew James E. Clark, son of James Clark, and Irene Clark, in three equal shares.
On the 27th of April, 1891, the executrix obtained from the Court of Probate for Annapolis County an ex parte license to sell the real estate of the deceased for the purpose of paying debts.
On the 15th of May, 1891, T. W. Chesley and Edmund Clark, executors of James Clark, deceased, petitioned the judge of probate to revoke such letters of license, and that an inquiry should be had as to the necessity for a sale of the real estate. Upon this petition a long investigation ensued, all parties interested being represented, which resulted in the dismissal of the application. From the decree of dismissal the petitioners, on their own behalf, as executors, as well as on behalf of the heirs and devisees of their testator, appealed to the Supreme Court, which appeal was dismissed with costs.
On the 10th June, 1891, Hannah Vail, the executrix of Joseph Clark, under the license to sell, now confirmed by the judgment both of the Probate Court and the appellate tribunal, sold certain lands of the
[Page 638]
deceased, the same having been set up at public auction, to the respondent Phineas D. Phinney, for the sum of $1,925, the deed to him being recorded two days afterwards. The respondent’s case depends chiefly upon the validity of this deed, or to its immunity from impeachment so far as the appellants are concerned.
The appellants’ case is this:—They were, or represented, the personal representatives and devisees under the will of James Clark, brother of Joseph Clark, and on the 8th of November, 1890, had obtained and recorded a judgment against Hannah, the executrix of Joseph Clark, and against his devisees as well, for $827.95. Another judgment between the same parties for the sum of $608 was also obtained and registered. These judgments being personal against the executrix and devisees of Joseph Clark they bound all the interest which they, or any of them, had in the lands of the deceased. It was therefore manifestly against the interest of the persons claiming under James Clark’s will that the executrix, Hannah, should under the authority of letters of license sell the lands of the deceased Joseph to pay the debts of his estate, and if they could show that there was sufficient personality for that purpose, the lands would be left free so that their judgments might operate upon and be satisfied from them.
It was for this purpose that the executors of James Clark, for and as representing these judgment creditors, took the inefficient proceedings in the Probate and Supreme Court above referred to.
As already stated, the lands in question had been sold under the letters of license to the respondent, but the appellants, claiming that no title passed by that deed, having issued an execution against the lands of the devisees of Joseph Clark upon the larger judgment
[Page 639]
against them, caused the lands sold to Phinney to be advertised for sale there under by the sheriff.
Phinney thereupon had the sale stayed and this action was brought to determine the respective rights of the parties to the lands purporting to be conveyed, to Phinney.
One important fact remains to be stated. It was admitted at the trial that “from the proceeds of the sale of land under the license to sell from the Probate Court, $612.50 was paid to the present appellants in satisfaction of a judgment for costs as plaintiffs in Clark v. Clark et al, and satisfaction was signed by the several defendants in this suit.”
The ground upon which the appellants claim their right to succeed is as follows:
The procedure to obtain a license for the sale of the real estate of a deceased person is now governed by section 26 of the Nova Scotia Probate Act, chapter 100, Revised Statutes, fifth series. That section, as amended by the statutes of Nova Scotia for the year 1888, chapter 26, section 6, reads as follows:
In case the personal estate of the deceased shall be found by the judge on affidavit insufficient for the payment of his debts and legacies, costs and the expenses incurred by the executor or administrator for the benefit of or in relation to the estate of the deceased, such judge, on security being given by the administrator or executor to account for the proceeds of the sale or the sum obtained by mortgaging or leasing the same, may at his discretion grant a license for the sale of the whole or such part of the real estate of the deceased as he shall deem necessary, or for the mortgaging or leasing thereof, provided such lease be for a term not exceeding twenty-one years; and such license may be granted to one or two executors, or to the majority of three or more executors, should one of them be out of the province or under any disability. Provided that no such license shall be granted unless the affidavit shall set forth a full and detailed statement of the claims against such estate, and a further statement showing the personal assets collected, and his belief that such claims are bonâ fide, and provided-further that if any party interested in said estate shall, before the day of sale, mortgaging or leasing of the same, petition the judge
[Page 640]
against the granting of such license, or for the revocation thereof, and praying that an inquiry may be had as to the necessity of such sale, mortgaging or leasing, it shall be the duty of the judge to postpone the sale, mortgaging or leasing for such reasonable time as he may deem proper, and to order the parties interested to be cited before him. If after hearing the parties and the evidence that may be adduced, he shall be satisfied that the granting thereof was unnecessary, he shall forthwith revoke such license; but if he shall deem the objection made to have been frivolous, the party so objecting shall pay the costs of the application, as well as all costs incurred in postponing.
The license in fact granted, it is contended, is not in compliance with the provisions of this section. Neither the instrument itself, nor the proceedings preceding it, and upon which it was based, contained a description of any kind of the lands of the deceased, nor was any information given to the court to enable it to come to a conclusion as to whether it was necessary to sell the whole or only a part, and if so what part, of these lands. Besides, it was contended, the license was invalid and beyond the jurisdiction of the judge of probate because it delegated powers to the executrix which under the statute had to be exercised by the judge of probate himself; that no person having authority to exercise judicial functions can delegate to another any part of such functions unless specially empowered to do so under specified circumstances.
The enabling or operative clause of the license was as follows:
It is therefore adjudged, ordered and decreed that the said Hannah Vail, executrix and trustee as aforesaid, have license, and she is hereby authorized, and required, after first giving thirty days’ notice of the time and place of the intended sale, by advertising the same in the ‘Royal Gazette Vat Halifax, and in the ‘Monitor’ newspaper published in Bridgetown, and by posting up notices thereof in the city, township or settlement wherein such real estate is, or may be situated, to set up and sell at public auction, to the highest bidder therefor, all and every the real estate of the said Joseph Clark, deceased, which he had held, or was in any way interested in, or entitled to, at the time of his death, or so much and such parts and portions of said real estate as
[Page 641]
may be found sufficient for the full and final discharging of the said debts.
And it was set up that although the statute imposed upon the judge the duty of determining whether the whole, and if not the whole what part, of the lands of the deceased it was in his judgment necessary to sell, the license in question transferred the exercise of this judgment or discretionary power to the executrix; in other words, that the executrix and not the judge was made the arbiter upon the question of necessity.
Again, it was contended that the license was bad because it limited the application of the proceeds of the proposed sale to the payment of “the debts due and owing by the deceased at the time of his death,” whereas the statute contemplated the payment not only of these debts, but the “costs and expenses incurred by the executor for the benefit of or in relation to the estate of the deceased” as well.
These contentions or some of them at least, were admitted to prevail by the learned trial judge, Mr. Justice Weather be and his views upon appeal were concurred in by Mr. Justice Townshend and Mr. Justice Meagher. Mr. Justice Henry in a most elaborate and able opinion held that the license in question did not infringe the rule as to the delegation of judicial power and his view was approved of by the learned Chief Justice. So that the case comes before us with three judges of the Supreme Court of Nova Scotia against the validity of the license and only two in its favour, there being, however, a unanimous opinion that upon other grounds the plaintiff must succeed, whatever the correct view may be as to the character of that instrument.
In our view it is not necessary for the purpose of determining this appeal that this court should express an opinion upon these particular questions. We are
[Page 642]
informed, and I believe correctly, that this form of license has been in common use in Nova Scotia from time immemorial (using that phrase in its popular, not in its legal sense), and that were it determined to be invalid innumerable titles to real estate hitherto deemed unassailable would be placed in jeopardy.
I would venture to suggest, in order to settle the manifest doubts and difficulties affecting this question, that it is a fit case for legislative action. Not long ago the legislature of Nova Scotia confirmed all deeds executed by sheriffs under foreclosure decrees, the validity of such deeds having been questioned. The confirmation of judicial sales under letters of license in the form in question here might possibly receive a like favourable consideration.
In our judgment the appellants must fail upon at least two grounds. First, this is a case in which the principle of res adjudicata applies.
The judge of probate had granted, upon the ex parte application of the executrix of Joseph Clark, letters of license to sell the real estate of the deceased. That real estate had been devised to persons against whom the present appellants had a registered judgment. It was that judgment, and that judgment only (as far as appears), that gave the appellants such an interest in the real estate as would enable them to attack the letters of license. Their locus standi in the Probate Court was the fact that they had a charge by virtue of their judgment upon the lands proposed to be sold. The petition to vacate the letters of license, although in the names of Thomas W. Chesley and Edmund Clark, executors of James Clark, expressly states that they, together with the devisees of James Clark, are judgment creditors, and as such interested in those lands. They were acting, not so much on their own as on the behalf of their co-judgment creditors, the devisees of James
[Page 643]
Clark, and when they appealed to the Supreme Court, as they did, they appealed not only on their own behalf, but on the behalf as well of “the heirs and devisees of James Clark,” who, along with the executors, are the present appellants. There was not at the trial, there was not at the argument, a suggestion that in the proceedings in the Probate Court or in the proceedings upon appeal in the Supreme Court the judgment creditors and all of them were not represented, or that the executors misrepresented their position as acting for all parties. It is too late now to contend that the judgment creditors, the present appellants, were not all of them parties to the proceedings both in the Probate Court and in the Supreme Court. The record makes them parties, and we must assume that they were. There can be no argument as to the other party in the contest. The individual attacked was Hannah Vail, executrix of Joseph Clark, and the present plaintiff, claiming under her, is her privy. So that, substantially within the rule as to parties and privies, we have in the Probate Court the same parties as upon this appeal. Then, what was the issue in the Probate Court? It was simply this:
Were the letters of license valid or invalid? It is contended that the petition to revoke the instrument was in pursuance of the statute, and that revocation could be obtained only upon grounds set out in the statute. I do not agree with this contention. It is elementary law, that all common law courts, a fortiori a court like the Probate Court with its common law powers and all the powers of the old court of Chancery (so far as the administration of the estates is concerned) as well, have inherent power and jurisdiction over their own proceedings, and can in a proper case revoke or set them aside at will. The case in this court of In
[Page 644]
re Sproule, was in part decided upon that principle. If the instrument in question was invalid upon its face, as well as invalid by reason of non-compliance with antecedent statutory provisions, it was the duty of the parties attacking it to assert and put forward the grounds of such patent invalidity and obtain a judicial decision upon the merits of such objections. It is clear that, as a general rule, a party after having moved a court to set aside a judicial proceeding upon specified grounds, and having failed upon such motion, cannot afterwards upon a substantive motion attack the same proceedings upon grounds which in the first motion, whether intentionally or inadvertently, he failed to set up. The licence in question was manifestly as objectionable when it was attacked in the Probate Court and upon appeal in the Supreme Court as it was when this suit was instituted. In both courts tribunals resorted to by the appellants themselves for the determination of the question, the decision was in favour of its validity. There was no appeal from the decision of the Supreme Court and that judgment must conclude the parties, and negative the defence here as well upon the ground of public policy expressed in the maxim interest reipublicœ ut sit finis litium as upon the ground of individual right. Nemo debet bis vexare pro eâdem causâ.
The case of Law v. Hansen, in this court and the authorities cited by my brother King in his judgment, though having reference to the effect of a foreign judgment, are useful upon this point; and see Nelson v. Couch; Newington v. Levy. And this view of the case is the more strong when it is considered that the very objections now set up were also set up when the probate decision came before the Supreme Court,
[Page 645]
two of the grounds of appeal being, first, “the license objected against was improvidently and illegally granted,” and secondly, “the license cannot make a legal title to the estate proposed to be sold under the authority of said license, and no purchaser would pay an adequate price for the same.”
Another ground upon which we think the respondent is entitled to succeed upon this appeal is that of estoppel. As already stated, the appellants had obtained two judgments, substantially against the estate of the deceased Joseph Clark, amounting as stated in Hannah Vail’s petition to $1,436.14. This claim constituted more than one-half of the unpaid liabilities of the estate. It was for the express purpose of liquidating this claim (as well as the other smaller ones) that the executrix asked for and obtained authority to sell the real estate. The appellants as judgment creditors knew this, and in the name of the executors of James Clark, as representing them, sought, by application to the proper court, to have that authority revoked. They failed. The authority to sell given to the executrix by a tribunal competent to give it was declared not only upon review by that tribunal itself, but upon appeal by the Supreme Court, to be sufficient authority. Upon the faith of these decisions the respondent purchased and paid for the lands, (The case does not show the date of the decision of the Supreme Court, but I think we must presume it was before the present suit began.)
Out of the proceeds of such sale the executrix paid to the appellants $612.50, they knowing (as they must have known) the source from which that money came. The admission made at the trial as above set out in our view implies the fact of knowledge. The claim of the appellants therefore now is; they say to the respondent: “we knew the executrix had no right to
[Page 646]
sell, that the license upon which she and you relied as giving her authority to sell and you to buy a sufficient title was nothing but waste paper, we knew you bought the land and paid your money upon the faith of the license. From that money which she received, she gave us and we accepted $612.50, but really, as a matter of law, you got nothing by your purchase. No title passed. Get back your money as best you can. For all we know or care your $1,925 are gone. The lands you claim are ours, or bound by our remaining judgment, and we propose to sell them.”
Now, I do not consent to the contention that they did not know that the money they all accepted was in the first instance the respondent’s money. The admission, as I have said, implies the contrary. Nor is there any more force in the argument that when the money was tendered them they were bound to accept it because the court would have so ordered. The court would not and could not have so ordered were the facts made apparent upon an application to enforce the execution of a satisfaction price. Its receipt, however, was purely voluntary, and in our view inconsistent with in intention of subsequently setting up the claim now put forward, a claim that shocks the conscience and is opposed to the fundamental principles of natural justice. The United States cases are against it. See Southard v. Perry, where a defendant was out of the” State at the time when a foreclosure decree was obtained against him and wrote his wife directing her to receive the surplus money from the sheriff. Held, he could not attack the decree because the summons was not served on him; Tooley v. Gridley, where the surplus money was applied by the court upon the motion of the subsequently objecting party; Merritt v.
[Page 647]
Horne; Deford v. Mercer, where the surplus money was got with a full knowledge of all the circumstances; and Spragg v. Shriver, where the person who should have objected said nothing until after the purchaser paid the money.
In Maple v. Kussart, Strong J. expressed himself as follows:
It is a maxim of common honesty as well as of law that a party cannot have the price of land sold and the land itself. Accordingly, it has been ruled uniformly that if one receive the purchase money of land sold he affirms the sale, and he cannot claim against it, whether it was void or only voidable.
It is likewise opposed to the principle expressed in the maxim Qui non improbat approbat. See Wharton’s Legal Maxims.
In Birmingham v. Kirwan, Lord Redesdale says:
The general rule is, that a person cannot accept and reject the same instrument, and this is the foundation of the law of election, on which court of equity particularly have grounded a variety of decisions in cases both of deeds and wills, though principally in cases of wills.
* * * * * * * *
The rule of election, however, I take to be applicable to every species of instrument, whether deed or will, and the principal reason why courts of equity are more frequently called upon to consider the subject (particularly as to wills) than courts of law, I apprehend is, that at law, in consequence of the forms of proceeding, the party cannot be put to elect, for in order to enable a court of law to apply the principle the party must either be deemed concluded, being bound by the nature of the instrument, or must have acted upon it in such a manner as to be deemed concluded by what he has done, that is, to have elected.
See Codrington v. Lindsay; Codrington v. Codrington.
We are of opinion that the appellants, taking the money referred to, knowing the source from which it came, that it was a portion of the purchase money paid
[Page 648]
by the respondent whose title to the lands in question they now seek to impeach, are now precluded from asserting the contrary.
The question as to whether the proceedings of the Probate Court may be collaterally attacked does not (if we are right upon either one or other of the foregoing views) call for determination upon the present appeal. It might require the investigation of a point upon which we deliberately refrain from expressing an opinion, namely, as to whether the license is upon its face a valid instrument.
Neither (if we are right upon the second view) are we necessarily called upon to express an opinion as to whether a sale of the undivided interest of a tenant in common in a portion only of devised lands is valid, but it appears to us that upon that point the reasoning of Mr. Justice Henry is very strong.
On the whole we are of opinion that the appeal should be dismissed and with costs.
KING and GIROUARD JJ. concurred.
Appeal dismissed with costs.
Solicitor for the appellants: O. T. Daniels.
Solicitor for the respondent: E. Ruggles.
Email this Content