Supreme Court of Canada
Burris v. Rhind (1899) 29 SCR 498
Date: 1899-06-05
Samuel Burris (Plaintiff)
Appellant
And
William Rhind and Caroline Rhind (Defendants)
Respondents
1899: Feb. 21; 1899: June 5.
Present:—Sir Henry Strong C.J., and Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Conveyance—Duress—Undue pressure—Trust property.
The owner of land having died intestate leaving several children, one of them, W. R., received from the others a deed conveying to him the entire title in the land in consideration of his paying all debts against the intestate estate and those of a deceased brother. Subsequently W. R. borrowed money from his sister and gave her a deed of the land, on learning which B., a creditor of W. R., accused the latter of fraud and threatened him with criminal prosecution, whereupon he induced his sister to execute a reconveyance of the land to him and then gave a mortgage to B. The re-conveyance not having been properly acknowledged for registry purposes, was returned to the sister to have the defect remedied, but she had taken legal advice in the meantime and destroyed the deed. B. then brought an action against W. R. and his sister to have the deed to the latter set aside and his mortgage declared a lien on the land.
Held, affirming the judgment of the Supreme Court of Nova Scotia (30 N. S. Rep. 405), that the sister of W. R. was entitled to a first lien on the land for the money lent to her brother; that the deed of re-conveyance to W. R. had been obtained by undue influence and pressure and should be set aside, and B. should not be allowed to set it up.
B. claiming to be a creditor of the father and deceased brother of the defendants wished to enforce the provision in the deed to W. R. by his brothers and sister for payment of the debts of the father and brother.
Held, that this relief was not asked in the action, and if it had been the said provision was a mere contract between the parties to the deed of which a third party could not call for execution, no trust having been created for the creditors of the deceased father and brother.
[Page 499]
Appeal from a decision of the Supreme Court of Nova Scotia reversing the judgment at the trial in favour of the plaintiff.
The facts of the case are sufficiently stated in the above head-note and in the judgments published herewith.
Sedgewick and Congdon for the appellant.
Drysdale Q.C. for the respondents.
THE CHIEF JUSTICE.—The appellant, who was the plaintiff in the action, founds his claim upon a mortgage of certain lands situate at Musquodoboit, in the county of Halifax, which was executed in his favour by the respondent William Rhind, on the 26th of February, 1896, to secure the sum of $718. The amount of the alleged mortgage debt was, according to the statement of the appellant, made up of debts due to him by William Rhind himself, and by his father, Alexander Rhind, and his brother, George Rhind. Alexander Rhind, the father of the respondents, was in his lifetime seized in fee of the land in question. He died in 1877, intestate, leaving a widow and several children, amongst others George Rhind, the eldest son, and the respondents William and Caroline Rhind. Upon the death of Alexander, George Rhind, the eldest son, took the management of the farm and carried it on supporting his mother and the younger children out of the proceeds. The respondent William, then seventeen years of age, • remained at home. The respondent, Caroline, some time after her father's death went to Boston to earn her own livelihood George died in 1890, also, as appellant alleges, indebted to him. After George's death William undertook the working of the farm,
[Page 500]
and up to the date of the action provided for the maintenance of his mother and the younger children. On the 28th of June, 1890, a deed was executed by which his brothers and sisters conveyed the land in question to William Rhind, who was at that time not quite twenty years of age. In this deed it was expressed to be made
in consideration of William Rhind paying all the debts due and owing by the late George Rhind, and discharging all debts against the estate of the late Alexander Rhind as they may become due and demandable.
William finding himself straitened in means for the support of his mother and the family, appealed for assistance to his sister Caroline who from time to time remitted him money, and none of the previous remittances having been repaid, William, in December, 1895, being much pressed, applied to his sister for a further advance of $200. In answer to this application Caroline remitted her brother, about the 10th of January, 1896, $120, which with the previous loans made up a sum of $450, for which William Rhind on the 16th of February, 1896, gave his sister security by executing in her favour an absolute deed of the land in question. This deed having been registered was in some way brought to the notice of the appellant, to whom, according to appellant's own statement, William Rhind was then in debt to the amount of $315.28. The appellant immediately applied to William to obtain a re-conveyance from his sister Caroline, and then to secure the appellant by a mortgage William Rhind in his deposition swears that the appellant accused him of fraud and threatened to prosecute him criminally unless he complied with his demand. The appellant it is true denies this, but I am satisfied from a perusal of the evidence that the Supreme Court of Nova Scotia were entirely right in holding, as they do in the judgment delivered by Mr.
[Page 501]
Justice Graham, that undue pressure and influence was exercised by the appellant, who was a country merchant, a postmaster, and apparently an experienced man of business, and who was accompanied by one Henry Cruickshanks, who also appears to have exerted himself in the appellant's behalf, and to have intimidated the respondent William, an inexperienced country bred lad. Under this influence William wrote to his sister Caroline reporting to her the threats which had been made by the appellant and Cruickshanks, and urging her to execute a re-conveyance to him. Influenced by the threats of the appellant thus communicated to her by William, Caroline executed a deed by which she purported to re-convey to William the land in question, and on this deed reaching William he executed the mortgage to the appellant, on which the present action is based. The conveyance from Caroline not having been sufficiently acknowledged for registry, was returned to her in order that an acknowledgment in proper form might be made. Upon thus regaining possession of the deed Caroline Rhind took legal advice in Boston, and acting on it refused to return the deed, and not only withheld it, but very improperly destroyed it. The appellant then brought this action claiming to set aside the deed from William to. Caroline, and for a declaration that his mortgage is a lien on the lands.
Caroline Rhind counterclaims for a declaration that she is entitled to a first lien on the property for her debt of $450 and interest, and also that the deed by which she purported to re-convey the land to William should be set aside. The learned judge before whom the action was tried having pronounced a judgment in favour of the appellant, this judgment was on appeal to the Supreme Court in banc discharged and a judgment entered in favour of Caroline Rhind, as
[Page 502]
prayed by her counterclaim, and the appellant was also restrained from setting up the deed of re-conveyance or release. And subject to these declarations and directions, the action was dismissed.
I am of opinion that the decree appealed against was in all respects right. The execution of the re-conveyance was beyond all doubt upon the evidence obtained by undue influence and fraudulent pressure, and that deed could not have been allowed to stand without an entire disregard of the principles upon which courts of equity act in such cases. I do not go into the evidence with any particularity for we may well adopt in its entirety the judgment which Mr. Justice Graham delivered for the court.
As something was said at the argument as to enforcing the provision in the deed by which the land was conveyed to William, and by which it was stated that the consideration was the payment of the debts of Alexander and of George, it is as well to point out why no relief such as that thus suggested can be given in this action.
In the first place, no case is made for it in the statement of claim. Then this provision is one entirely "res inter alios" as regards the appellant, the benefit of which the appellant is not entitled to avail himself of. It created no trust for the creditors of Alexander and George, but was a mere contract between the parties to the deed, and the respondents are entitled to invoke the well known rule, thoroughly established in equity as well as at law, that a mere contract enures to the benefit exclusively of the party from whom the consideration moves; Tweddle v. Atkinson; Colyear v. Lady Mulgrave; and that no third party however directly a covenant or contract may appear to be designed for his benefit can call for its
[Page 503]
execution. To give the appellant any relief on this head would be to violate this well established rule of law.
There is no doubt that the whole of the land was originally assets available for the payment of the debts of Alexander Rhind, and that the undivided share of George according to the number of children of Alexander was also available for the payment of his own debts, and if there remain any of these debts still unbarred by the statute of limitation (which as the statute began to run on the lives of the original debtors is not very probable; Rhodes v. Smethurst,) such creditors may possibly still make the land available for their payment. But this can only be done in an action properly constituted for that purpose, and not in the present action.
The appeal is dismissed with costs.
TASCHEREAU J. concurred.
GWYNNE J—The facts upon which the judgment upon this appeal must rest appear to be that in 1877, one Alexander Rhind died intestate seized in fee of a farm situate at Musquodoboit, in the county of Halifax, in the province of Nova Scotia, containing about 100 acres, and leaving him surviving a widow and two sons, George, and the defendant William, who was then only six years of age, and of some daughters, of whom the defendant Caroline was one. Alexander also left some chattels consisting of some farm stock, and implements, and household effects, but no letters of administration of his estate appear to have been taken out although he left some debts. His widow with her family continued to reside upon the farm which was worked by George, the eldest son.
[Page 504]
The defendant Caroline, in 1882, left home and went to reside at Boston, in the State of Massachusetts, where she has ever since resided, maintaining herself. George during his life purchased 100 acres or thereabouts, which he added to the farm, and of which early in 1890, he died seized, intestate and unmarried. During the latter years of George's life he was in delicate health, but with the assistance of the defendant William, who at George's death was about nineteen years of age, he managed to continue working the farm and maintaining their mother. In the year 1888, and from thence until George's death, the defendant Caroline having prospered in life advanced and lent from time to time to George divers sums of money amounting in the whole to $225, a portion of which, amounting to about $130, was advanced to him for the purpose of being applied and was applied in payment of a debt or debts of their father Alexander. No letters of administration of the estate and effects of George Rhind appear to have been taken out, but upon the 28th of June, 1890, the heirs of George, who were also the heirs of Alexander Rhind by a deed executed by them, the consideration of which was stated to be one dollar, and
in consideration of William Rhind paying all debts due and owing by the late George Rhind and discharging all debts against the estate of the late Alexander Rhind
conveyed the said respective parcels of land whereof the said Alexander and George Rhind respectively died seized to the said defendant William Rhind, his heirs and assigns in fee simple. At the date of this deed, namely, the 28th of June, 1890, William Rhind, the grantee therein, was not yet twenty years of age. He undertook, however, the working of the farm and the maintenance of his mother thereon, and became seized of the lands conveyed by the deed,
[Page 505]
subject, however, to the trust imposed by the deed for the payment and discharge of the debts of his deceased father and brother respectively, and to the right of dowser of his mother in that portion of the land of which his father Alexander had died seized. On the loth October, 1891, William gave to his sister Caroline his promissory note for $225, payable on demand, with interest at 5 per cent per annum by way of security to her for the $225 already mentioned as having been advanced by her in the lifetime of George. Between that date and the month of January, 1896, the defendant Caroline advanced to her brother William the further sums of $65, $40 and $120, to be applied in payment of debts of her brother George for which respectively William gave her his promissory notes dated respectively June 1st, 1893, May 1st, 1895, and January 10th, 1896, with interest on said respective sums at 5 per cent. This latter sum of $120 was advanced in compliance with a request in a letter from William to her dated December 9th, 1895, that she would advance the further sum of $200 to pay debts of George's, still unpaid. In this letter he pledged himself to give her ample security for all her past advances as well as for that then asked for. In her reply dated December 17th, she declares her inability to advance in addition to the sums already advanced by her so large a sum, but promises to send as much as she could, and in January, 1896, she sent the $120. In her letter of December, 1895, and in one of January, 1896, enclosing the money then sent, she insists upon the necessity of her being given some better security for her advances than notes of hand, and adds that of course she would give them up when he should give her security, promised in his letter of December 9th, and that before doing anything more she was very anxious to know how matters stood. In
[Page 506]
reply to the defendant, William Rhind mailed to her a deed in fee simple dated the 11th day of February, 1896, and duly registered on the same day in the proper registry office in that behalf whereby in consideration of the sum of $750 therein expressed to have been paid to him by Caroline, he conveyed to her all the lands and tenements so as aforesaid conveyed to him by the deed of the 28th June, 1890. The effect and operation of this deed of the 11th February, 1896, was to vest in Caroline all the estate of her brother William in the said lands as security to her for repayment of her said advances with interest as aforesaid, and subject to whatever right the creditors of Alexander and George respectively might have to enforce their claims upon the lands so conveyed to Caroline as equitable charges imposed by the deed of the 28th June, 1890, ratably with Caroline herself in so far as her said advances were applied in payment and discharge of claims against the estate of Alexander and George respectively. Now the plaintiff who claimed to be himself a creditor of both Alexander and George respectively, and as such to have a charge upon the lands so conveyed to William Rhind by the deed of June 28th, 1890, instead of asserting his claim for an equitable charge on the said lands procured the defendant William by threats of criminal prosecution, as stated in the pleadings, to get a reconveyance from Caroline, and then took from William a conveyance to himself by way of mortgage.
The plaintiff's case is thus stated in his statement of claim. It alleges first the execution of a mortgage dated the 26th February, 1896, upon the lands in question to secure the payment of $718. It then alleges that $315.28 of that amount was a private debt of William Rhind to the plaintiff. It then alleges the
[Page 507]
execution of the deed by William to Caroline Rhind dated 11th February, 1896, and avers
that the said deed was executed for the purpose and with the intent to hinder and delay the creditors of the said William Rhind, and to prevent the creditors from obtaining payment of the debts due to them and there was no consideration for the making of the said deed.
Then it alleges that by deed of the 28th June, 1890, the property was by all of the heirs of Alexander and George respectively other than the defendant William, conveyed to William upon the consideration, as already set out above. It then alleges
that the defendant William agreed to procure from the defendant Caroline a reconveyance to himself of said property, and to give the plaintiff a mortgage thereon for the sum of $718, if the plaintiff would pay off the debts then remaining due and owing by the said George Rhind, deceased, to which the plaintiff agreed; the defendant William Rhind thereupon procured the said reconveyance and the plaintiff paid off said debts amounting in all to the sum of $472.38, and delivered up to the said defendant William Rhind notes made by the late George Rhind to various parties, which were still due and unpaid, and on which the said sum of $47238/100% was owing.
This sum together with the sum of $315.28 previously mentioned, made the total indebtedness of William Rhind to plaintiff $787.66 from which plaintiff agreed to deduct $69.66, leaving the sum of $718 for which said defendant then gave the said mortgage. It then alleges that at the time the said defendant delivered the said mortgage to the plaintiff he also delivered to him the said deed from the said Caroline to the said William for the purpose of having the same recorded; that the said deed was executed by the said Caroline, but that the registrar declined to register it owing to some alleged defect in the certificate of the notary as to the execution thereof; that the deed was thereupon returned for correction to the said Caroline, who at the instance of and connivance with the defendant William in order to defraud the plaintiff and
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prevent the said mortgage from binding the property therein described failed, neglected and refused to return said deed for registry, but either retained the same or delivered it to the defendant William who fraudulently retains the same, and the plaintiff prayed 1st. To set aside the deed from William to Caroline Rhind.
2nd. For a declaration that the mortgage is a lien upon the lands therein described.
3rd. For an injunction to restrain the defendant Caroline from transferring or conveying the said land to any person other than to the said William Rhind, or in the alternative that the plaintiff recover the said deed from the defendants.
We have already seen that there is no foundation for the present claim in so far as it is rested upon the allegation that the deed of the 11th of February, 1896, was executed without any consideration therefor and with a fraudulent intent, and as to the mortgage of the 26th February, 1896, it seems to have been executed upon a consideration similar to that upon which the deed to Caroline of the 11th February, 1896, was executed, namely to secure payment of sums which the plaintiff claimed to be charged upon the lands conveyed by the deed of 28th June, 1890. Of the $315.28 which the plaintiff in his statement of claim alleges to have been a private debt due to him by William Rhind, it appears upon the plaintiff's own evidence given in the action that $273, or thereabouts were monies due to him by Alexander and George respectively, and were as the plaintiff claims charged upon the lands conveyed by the deed of June, 1890.
William Rhind in his evidence at the trial said that on the evening of the execution of the deed of the 11th February, the plaintiff having heard of it and
[Page 509]
taking with him one Henry Cruikshanks, a brother in-law of William Rhind, went to see the latter and charged him with having committed a fraudulent and criminal act in executing the deed to his sister for which he was liable to prosecution—that it was a penitentiary case, and he threatened to institute proceedings against him therefor unless he should write at once to his sister and explain to her the position in which he was, as stated to him by the plaintiff and Cruikshanks, and get her to deed back the property to him.
After a long discussion wherein the plaintiff and Cruikshanks persuaded the defendant William that he had committed a criminal offence, they parted on the understanding that William should write to his sister and inform her of the position in which he was as stated to him by the plaintiff and Cruikshanks, and get her to reconvey the property to him as required by the plaintiff. William accordingly wrote to his sister, and told her what had taken place at the interview, and of the threats made by the plaintiff, and in consequence thereof he entreated her in piteous terms to reconvey the property to him—thus—
Burris says I have got myself into a bad fix. He says that I could not lawfully deed my property to you on any consideration being that you was my sister—a near relation, and furthermore he says that the deed that James Cruikshanks wrote (the deed of 28th June, 1890) holds me for my brother's debts. He says it is a bad thing for me. He said it was a fraud. It would put me into the penitentiary. Henry Cruikshanks said it was a bad thing for me, that my lawyer had advised me wrong; that they wanted a job and are deceiving me just to get me into law. Burris says the same. He says you better deed the property back to me at once or he will take it into law. Burris says he will have George's debts out of the place if it costs him all he is worth. I don't know what to do, as I do not understand law, and Burris says I have done wrong. I did not intend to do wrong. I felt it right that you should have security lor your money which you have loaned me from time to time. But if as
[Page 510]
Burris and Cruikshanks say the deed holds me for my brother's debts what can I do? I think you had better deed the property back to me as soon as possible to save further trouble. For they will make trouble for me if they can. If it was not for mother I would let them see what they could do, but mother cries and worries so much, thinks I better have it in my name again so as to save further expense. Donald Archibald will send a deed up to you to sign. Return the deed to me after you sign it. I will try in some other way to secure you for the money I have got from you. Try and get this done as soon as possible.
In due course Archibald sent to Caroline a deed prepared under instructions of plaintiff which she returned to her brother William. She says that she received the above letter from her brother, and on the same day a letter from Mr. Archibald enclosing a deed for her to sign. After reading her brother's letter she instantly without consulting any one signed the deed. It was her brother William's letter which induced her so quickly to sign the deed. She says:
After I read William's letter I was greatly alarmed and frightened and thought he would be shut, up and be behind the bars, and the sooner I attended to it the better. I was nervous for my mother's sake, and being so far from home I thought he had got into trouble.
Upon the return of the deed to William, the plaintiff, who was postmaster at the place where William resided, obtained thereby notice of its arrival. The plaintiff says that he saw in the post-office a large envelope addressed to William which he supposed contained the deed, and he would not say that he did not get Henry and James Cruikshanks to go and see William and ascertain whether the deed had not came from his sister. He did not, he said, remember. Henry Cruikshanks was the one who was with the plaintiff in his first interview with William a week previously, and James was a lawyer in the Province of Quebec, and who had drawn the deed of the 28th June, 1890 These two did go up to see William the evening of the day after he had received the deed,
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and this is his account of what took place. Henry and James Cruikshanks he said, came to his house the night after he got the deed, about eight o'clock, and asked him if he had got the deed, to which he replied that he had, and thereupon James asked to see it. William put the letter containing the deed on the table, and James took it up and read it and said, "Yes, it is the deed," and he put it in his pocket, and said to William that he must come right up with him to the plaintiff. He said that the plaintiff was in a rage and was determined to have the deed, and he added that it was a bad thing, and that he knew a case just like it in Montreal where a young man and his sister had done the same thing, that they thought they had done nothing wrong, but they had been put in the penitentiary. William then said that being ignorant of law he got alarmed, he was frightened about the penitentiary, and being urged by James to go with him up to the plaintiff's, he went. James took the deed with him, and on arriving at the plaintiff's told him that he had it, and James in the plaintiff's presence repeated the story about the young man and his sister at Montreal. Then the plaintiff suggested the execution of a mortgage to himself, he to pay the debts of George upon the estate, and the plaintiff prepared the mortgage which he then procured William to sign.
It appears that the deed sent by Caroline to William was not executed, or not proved to have been executed in the manner required by the law of Nova Scotia as regards deeds conveying lands therein executed abroad, and it was sent back to Caroline to Boston through Mr. Archibald, who had originally sent the deed to her with a request to have the defect removed. She, however, heard in the meantime of the execution by her brother of the mortgage to the plaintiff. This she
[Page 512]
considered to be in violation of the terms upon which she had signed the deed back to her brother, and she then took advice, and in accordance with such advice burned the deed. Now the evidence as already observed clearly shows that there is no ground whatever for the charge which is repeated in the plaintiff's statement of claim as the foundation stone upon which he rests the main prayer for relief, viz., "To "set aside the deed from William Rhind to Caroline E. "Rhind," and Caroline in her counter-claim, claims to have the deed executed by her 1o William set aside, and that it may be declared that the deed of the 11th day of February, 1896, is a security to her to secure payment of $450 advanced by her with interest, and that it is a first lien upon the lauds described therein.
The learned trial judge has found as matters of fact, that the deed of the 11th February, 1896, was executed to Caroline for good and valuable consideration, and that her brother William requested her to reconvey the property to him from fear of criminal consequences, which fears were the result of plaintiff's and Henry Cruikshanks's conversations when he was threatened with proceedings by the plaintiff, and that William under such impressions wrote for the deed and informed his sister as he believed that he had made himself criminally responsible, and that the defendant Caroline acting on the information so conveyed to her by William, and in the belief that her brother had made himself criminally liable, executed a deed reconveying the property to William.
Now it is not questioned that, and I think there can be no doubt that if the deed which was executed by Caroline to her brother had been executed by a father for the relief of a son from a criminal prosecution under the circumstances appearing in evidence here, it could not have been maintained at the suit of and
[Page 513]
in the interest of the plaintiff, but the learned trial judge was of opinion that the rule applicable to a father entering into a contract for the purpose of relieving a son from a criminal prosecution does not apply in the case of a sister doing the like for a brother. He could, he said, find no such case in the English reports although there are several in the American courts in which the same principle is applied in both cases.
The principle as gathered from the judgment of Lord Westbury in Williams v. Bayley is that
a contract to give security for the debt of another, which is a contract without consideration, is above all things, a contract that should be based upon the free and voluntary agency of the individual who enters into it. But it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is altogether taken away from a father who is brought into the situation of either refusing, and leaving the son in that perilous condition, or of taking on himself the amount of the civil obligation.
The case before us presents an illustration, if any were needed, of the fact that the sympathies and affections of a sister for a brother equally as those of a father for a son are susceptible of being called into action so as to deprive her of the power of considering whether she ought to have executed the deed as required by the plaintiff—whether it would be prudent for her so to do and in short to deprive her of the power of acting with that freedom and power of deliberation which her own interests and the nature of the case required. That her interests were subordinated to her sympathies and affection for her brother in the peril to which she believed him to be exposed there can be no doubt, and I can therefore see no reason why the principle as laid down in Williams v. Bayley (1) should not apply to her case.
Seear v. Cohen is an authority that in the case of a contract entered into like the present upon
[Page 514]
threats of criminal prosecution it is not necessary that actual ground for the prosecution should exist in fact. We now see that in the present case none did in point of fact exist. The deed of the 11th February, 1896, is established to have been executed for good and valuable consideration. The plaintiff in his statement of claim bases his claim for the relief upon an allegation that it was executed with a fraudulent intent and without consideration. If he could have succeeded in establishing that contention William Rhind might have been exposed to criminal prosecution under sec. 363 of the Criminal Code upon the contention that under the deed of the 28th June, 1890, William Rhind became a trustee of the land in favour of the creditors of his father Alexander and his brother George, and this no doubt was the criminal prosecution referred to. But as already said the question is not whether there was any good ground for a criminal prosecution but whether the plaintiff having charged William Rhind with a criminal offence in his executing to his sister Caroline the deed of the 11th February, 1896, and having threatened to prosecute him therefor and having procured him, as I think we must upon the evidence hold that the plaintiff did procure him, to write to his sister and to persuade her that in executing to her that deed he had committed a criminal offence and had subjected himself to a criminal prosecution therefor which the plaintiff threatened to institute against him unless Caroline should reconvey the land to her brother, and she having without any consideration whatever other than of releasing her brother from such threatened prosecution executed in favour of her brother a reconveyance of the land which she afterwards destroyed as appearing in evidence, and the plaintiff having got possession of that deed before it was destroyed under the circumstances stated by
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William Rhind, can he now, having failed to establish any fraud whatever in the execution of the deed of 11th February, 1896, which is shewn to have been executed for good and valuable consideration, establish any equity to claim the benefit of the deed of reconveyance from Caroline to William Rhind so as aforesaid executed and afterwards destroyed as still being a good, valid and subsisting deed in support of the mortgage executed by William Rhind on the 26th February, 1896, under the circumstances appearing in his evidence? I think that he cannot, but that on the contrary the counter claim of the defendant Caroline must prevail, and that this appeal must be dismissed with costs, and that the judgment of the Supreme Court of Nova Scotia, with a slight variation therein, must be maintained, such variation consisting in adding to the last paragraph but one of that judgment after the words "$450 advanced by defendant Carolina Rhind to the defendant William Rhind" the following "subject however to any claim which the plaintiff may be able to establish ratably with her the said Caroline, as a charge upon the said lands under the terms of the deed of the 25th June, 1890, as a creditor of the late Alexander or George Rhind respectively, or for monies actually paid by the plaintiff to persons who as creditors of said Alexander or George Rhind had claims upon the said lands by virtue of the said deed for debts due to such creditors by said Alexander and George Rhind respectively, and also subject ratably to the claims of any other creditors if any there be of the said Alexander or George Rhind having charges on the lands under the said deed of the 28th June, 1890."
SEDGEWICK J.—I am of opinion that this appeal should be dismissed with costs for reasons given in a judgment prepared by the Chief Justice.
[Page 516]
KING and GIROUARD JJ. concurred.
Appeal dismissed with costs.
Solicitor for the appellant: Fred. T. Congdon.
Solicitor for the respondent William Rhind: F. H. Bell.
Solicitor for the respondent Caroline E. Rhind: Hector McInnes.
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