Green v. Ward, (1899) 29 SCR 572

Supreme Court of Canada

Green v. Ward, (1899) 29 S.C.R. 572

Date: 1899-06-05

Freeman Green and Isabel Green (Defendants) Appellants;

and

Elizabeth Ward (Plaintiff) Respondent;

and

Margaret Wilbur and Palmer R. Wilbur Defendants.

1899: March 22, 23; 1899: June 5.

Present: Sir Henry Strong C.J., and Gwynne, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Construction of deed—Partition—Charge upon lands.

A deed for the partition of land held in common contained a conveyance of a portion thereof to M.W., for certain considerations therein recited of which one was the condition that she should procure from her minor children, upon their coming of age, the necessary quitclaim deeds for the release of their interests in another portion of the land in question apportioned and conveyed to her coparceners, and the amount of certain payments of money then made for the purpose of effectuating the partition, was by the deed of partition declared to remain a lien on that portion of the land thereby conveyed to M.W. until such quitclaims should have been obtained and delivered to her said coparceners.

Held, that the said recital was sufficient to charge that portion of the said land so conveyed to M.W. with the amount of the said payments of money as a security for the due execution and delivery of the quitclaims in conformity with the condition stipulated in the deed of partition.

APPEAL from the judgment of the Court of Appeal for Ontario, affirming the judgment of Mr. Justice Robertson in the High Court of Justice, with certain variations and amendments.

The facts and questions at issue upon the present appeal are sufficiently stated in the head‑note and in

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the judgment delivered by His Lordship Mr. Justice Gwynne. The second paragraph of the order in the judgment appealed from is as follows:

“2. And this court doth further declare that the plaintiff is entitled to a charge upon the north twenty-five acres of the east three-quarters of the east half of lot 12, in the eleventh concession of the Township of Howard, in the County of Kent (to the extent or sum of $400, * * *) as security for the due execution by the said Mary Elizabeth Wilbur and Levi Wilbur, of a conveyance to the plaintiff granting, remising, releasing and forever quitting claim to the plaintiff, her heirs or assigns, all and every right, title and interest which they or either of them may have now or hereafter, into or out of the south-east two-thirds divided crosswise of the north-easterly three-quarters divided lengthwise, of the north-easterly half divided lengthwise of lot number twelve in the eleventh concession of the said Township of Howard, containing fifty acres more or less.

Gundy for the appellants.

John A. Robinson for the respondent.

The judgment of the court was delivered by:

GWYNNE J.—So exhaustively has this case (the value of what is in contest in which is admitted to be only $400), been treated by the judgments in the courts below that it is unnecessary to review the facts or to do more as to them than to say as is pointed out in those judgments, that the object of the parties in entering into the agreement which they did enter into for the partition among them of the lands in question was to give to each a fee simple estate in the portions conveyed to each, and that the defendant Margaret Wilbur should procure from her children upon their coming of age quitclaim deeds in favour of Freeman

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Green and of Mrs. Ward respectively of whatever interest they might have in the lands. The evidence also establishes that the agreement as taken down by the solicitor employed by the parties for the purpose and signed by them is correctly recited in all of the deeds as prepared by the solicitor for execution. That in favour of the appellant was signed by Mr. Wilbur and her husband, and that in favour of Mrs. Wilbur by the appellant. In these deeds the agreement is recited as follows:

Whereas the said Margaret Wilbur, Palmer R. Wilbur, Elizabeth Ward, Freeman Green and David Green, each having or claiming to have an individual interest or share in the east half, otherwise the northeasterly half divided lengthwise of lot number twelve, in the eleventh concession of the Township of Howard, in the County of Kent and Province of Ontario, have agreed to a partition and purchase of the said part of the said lot on the following conditions, namely, the said Freeman Green shall take and receive the southwesterly quarter of said northeasterly half of said lot divided lengthwise, and shall receive from said Elizabeth Ward the sum of two hundred dollars, and shall pay to the said David Green the sum of one hundred dollars. The said Margaret Wilbur shall take and receive the northwest one-third of the remaining three-quarters of said northeasterly half of said lot, and shall receive from the said Elizabeth Ward the sum of three hundred dollars, and shall pay to the said David Green the sum of three hundred dollars, and shall also further pay to Mary Elizabeth Wilbur and Levi Wilbur, the only surviving children of the said Margaret Wilbur and Palmer R. Wilbur (the other children of the said Margaret and Palmer Wilbur having died intestate and without issue), any moneys that may be due to them, if any, out of said lands, and shall also obtain for the said Freeman Green and Elizabeth Ward quit claim deeds from the said Mary Elizabeth Wilbur and Levi Wilbur respectively when they shall severally arrive at the age of twenty-one years. The said payments to the said Mary Elizabeth Wilbur and Levi Wilbur are hereby declared to be and remain a lien on the part of said lands taken by the said Margaret Wilbur until any money due to the said Mary Elizabeth Wilbur and Levi Wilbur are fully paid and the said quitclaim deeds are obtained from them and delivered to the said Freeman Green and Elizabeth Ward. And the said Elizabeth Ward shall take and receive the southeast two-thirds of the said remaining three-fourths of said half lot being the remainder thereof

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and shall pay to the said Margaret Wilbur three hundred dollars, to the said Freeman Green two hundred dollars, and to the said David Green two hundred dollars. And whereas the said parties have agreed to execute and deliver proper deeds of conveyance to carry out the above partition and purchase and to pay the said payments as above set forth, and that Palmer R. Wilbur, the husband of the said Margaret Wilbur, and the wives of the said Freeman Green and David Green, respectively, shall join in the said deeds and bar their respective dowers.

The intention of all the parties being, by reason of the claim of David Green that the wills of his deceased sisters were invalid, to come to an arrangement among themselves for a partition of the estate in question between them in fee simple, and as the interests of Mrs. Wilbur’s children could not be bound by anything done to their prejudice during their minority it was natural and indeed necessary to give any validity to the contemplated partition for the effecting which the plaintiff was paying $700 that Mrs. Wilbur and her share in the lands partitioned should be required to assume the responsibility of procuring the necessary quitclaim deeds to be executed by her children on their coming of age. There is no question before us as to whether the partition as made was fair and equitable to all the parties to it.

That the agreement was entered into is conclusively established by the evidence of the solicitor who took it down from the lips of the parties who signed it in the solicitor’s presence as his instructions to prepare the necessary deeds, and the only question before us is whether or not that agreement as recited in the deed in virture of which Mrs. Wilbur acquired the portion of the land allotted to her justifies and supports the charge imposed upon it by the second paragraph of the judgment which is appealed from and we are of opinion that the charge so imposed is in accordance with the agreement recited in the deed, and upon the faith of which alone the land mentioned

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in the deed was conveyed to Mrs. Wilbur, and having accepted the land upon the faith of that agreement the appellants as claiming under her and a party to the same agreement must fulfil its terms.

We cannot but express our surprise that a solicitor to whom these deeds were sent for the mere purpose of witnessing their execution should have permitted Mr. Wilbur to make the alteration which he did in the recital of the agreement in the deed to the plaintiff, and we concur in the judgment of the courts below that notwithstanding the evidence of the solicitor who permitted the alteration without any authority to do so, the plaintiff did not understand and could not have understood the fact and the intent of the alteration, but our judgment rests not solely upon her ignorance of the fact or her misunderstanding of anything which may have been said to her as to the fact or the intent of the alteration, but also upon this, that the alteration made by Mr. Wilbur is only in the deed to Mrs. Ward, whereas the deed to determine the liability of Mrs. Wilbur, and of the appellant as purchaser from her and her husband, is the deed in virtue of which Mrs. Wilbur, until the sale to the appellant, held, and in virtue of which the appellant now holds the land conveyed to Mrs. Wilbur in pursuance of the agreement between the parties thereto and therein recited, and the true construction of the agreement recited in that deed, we think, is that the land conveyed to Mrs. Wilbur on the faith of the agreement is bound to indemnify the plaintiff against the claims of Mrs. Wilbur’s children, who are now of age. The appeal therefore must be dismissed with costs.

Appeal dismissed with costs.

Solicitor for the appellants: W.E. Gundy.

Solicitor for the respondent: John A. Robinson.