Supreme Court of Canada
Greer v. Faulkner, (1908) 40 S.C.R. 399
Date: 1908-06-16
Joseph C. Greer and Another (Defendants) Appellants;
and
Isabella Agnes Faulkner (Plaintiff) Respondent.
1908: May 26; 1908: June 16.
Present: Girouard, Davies, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Damages—Trespass—Cutting timber—Sale to bonâ fide purchaser—Action by owner of land.
F. conveyed land to his wife for valuable consideration. Shortly after it was discovered that a trespasser had cut timber on said land and sold it to G. who bought in good faith and sold to another bonâ fide purchaser. In an action by F.’s wife against the two purchasers the money was paid into court and an interpleader issue granted to decide which of the claimants, the plaintiff or G., was entitled to have it.
Held, affirming the judgment of the Court of Appeal (16 Ont. L.R. 123) which reversed the decision of the Divisional Court (14 Ont. L.R. 160) that the plaintiff was entitled to the whole sum. Duff J. expressed no opinion on the question.
Held, also, Idington J. dubitante and Duff J. dissenting, that if necessary the writ and interpleader order could be amended by adding F. as a co-plaintiff with his wife.
Appeal from a decision of the Court of Appeal for Ontario reversing the judgment of the Divisional Court by which the damages awarded to the plaintiff at the trial were reduced.
Mr. Justice Osler in giving reasons for the judgment in the Court of Appeal stated the facts as follows:
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“This was an appeal by the plaintiff from the judgment of a Divisional Court varying the judgment of Magee J. at the trial and holding that the plaintiff was entitled to $600 only instead of to the whole of the moneys which had been paid into court under the interpleader order.
“The question arose upon an interpleader issue and the facts are not complicated.
“The plaintiff was the owner in fee of a lot in the township of McTavish, in the District of Thunder Bay, and she was also equitably entitled on the grounds mentioned in the judgments below, from which I see no reason to differ, to a quantity of spruce and tamarac piles which had been wrongfully cut thereon by persons named Dunn and Evoy, for the purpose of carrying out an agreement theretofore made by them with the defendants. The piles were delivered to the defendants on the lake shore at Black Bay, at a point not far from where they had been cut, and were afterwards rafted by them for the defendants, who towed them to Port Arthur, where they sold them to the Barnett-McQueen Co., Limited, for $3,781.11, which was not disputed to be about their value there. The standing trees from which they were cut were found by the learned trial judge to be of the value of $600, or thereabouts in situ. He also found that the defendants were ignorant of the plaintiff’s ownership of the piles or where they had been cut, and had dealt with Dunn and Evoy as the owners. Before the purchase money had been actually paid over to the defendants the plaintiff discovered the theft of her property and traced it to Port Arthur, and found it in the possession of the Barnett-McQueen Co., from whom she demanded possession or payment of its full value there,
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warning the holders against paying over the purchase money to the defendant. Attempts to settle the differences between the parties having failed the plaintiff brought an action against the Greers and the Barnett-McQueen Co., claiming damages for cutting and taking her property or a declaration that she was entitled to the proceeds of the sale. Thereupon the Barnett-McQueen Co. applied for and obtained an interpleader order by which it was directed that the plaintiff and the defendants should proceed to the trial of an issue in the High Court, and that the question to be tried should be whether at the time of the issue of the summons in the action the plaintiff was entitled to the proceeds of the piles in question. The Barnett-McQueen Co. were ordered to pay into court to the credit of the interpleader issue the alleged proceeds of the sale, being $3,781.11, less their costs, and the action against them was thereupon to be discontinued.
“The issue was framed in the terms of the order, and upon the trial the learned judge held that the piles in question had been cut and removed from the plaintiff’s lot; that they were her property in the hands of the defendants and of the Barnett-McQueen Co., and that the money paid into court was the proceeds of the sale thereof by the former to the latter. He further held that the plaintiff was entitled to the whole of such proceeds under the terms of the issue and not merely to so much thereof as represented the value of the piles at the place where they were cut, or standing in the trees, before they were cut and manufactured into piles and transported to Port Arthur. The contrary view was taken by the Divisional Court, and the plaintiff’s recovery was restricted accordingly to $600.”
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The action was brought in the name of Mrs. Faulkner as owner of the fee. As the trespass was committed before the land was conveyed to her, however, a question arose as to her right to recover and Mr. Justice Meredith in the Court of Appeal thought that an amendment could be allowed joining her husband as co-plaintiff but no such order was made by the court.
W.H. Blake K.C. and Anglin K.C. for the appellants. That an innocent purchaser is in the same position as a wrongdoer is true as respects the property itself but not as to the proceeds. See Hollins v. Fowler.
The plaintiff having elected to waive the tort and claim the proceeds the seller can only be regarded as her agent. See Hovil v. Pack; Bristow v. Whitmore. Evans on Principal and Agents (2 ed.), pp. 76, 82; and whatever may be her remedies she had no right of action against this specific purchase money. White v. Spettigue; Brewer v. Sparrow; Railway Company v. Hutchins.
The plaintiff has no title, legal or equitable, to the timber cut before she received the deed of the land. See Attwood v. Small; Bell v. Macklin.
Shepley K.C. and C.A. Moss for the respondent. The appellant has no higher title to the timber or its proceeds than the original wrongdoer would have had. See Bavins Junior & Sims v. London & Southwestern Bank.
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GIROUARD J.—I am of opinion for the reasons contained in the judgments of Davies and Maclennan JJ. that this appeal should be dismissed.
DAVIES J.—I agree in substance with the judgment of Meredith J. in the Court of Appeal. I think in order to maintain the action the amendment asked at the trial and during the several stages of the successive appeals and now repeated in this court to add the name of the husband of Mrs. Faulkner as a plaintiff is necessary. I think further it should be granted. It does not in my opinion change, modify or alter the substantial question directed to be tried by the interpleader order. It is an amendment necessary to be made in order to determine the issue stated in that interpleader order but does not prejudice any one. As to the wife’s title under the deed, to the trees cut before its execution, it seems fairly clear that the intention of the parties was to convey the land with the trees upon it. Neither grantor nor grantee, at the time of the execution of the deed, had the slightest idea that a wrongdoer had spoiled the land of the trees. The husband’s subsequent action, in endeavouring to secure the proceeds of the sale of the trees for his wife and his acting in that regard as his wife’s agent, is strong evidence of the common intention of the parties to transfer the trees with the land to the wife. Counsel in asking for the amendment claims to represent the husband and I cannot see any good ground why an amendment necessary to try the real issue involved in the interpleader order should not be made.
Then, as to the question of damages, I agree we cannot go behind the interpleader order or enter into the question whether it was rightly made or not. The
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order was not appealed from. The money being the purchase price of the ties in dispute, sold by the defendant to the Barnett-McQueen Co., is in court brought in by that company when they, as a then defendant in this suit brought by Mrs. Faulkner against them and Greer & Co., the appellants, obtained the interpleader order and so discharged themselves. We cannot go behind the issue. The granting of the interpleader order was not appealed from. We have simply to decide on that issue as formulated in the order. It reads as follows:
The plaintiff affirms and the defendants deny that on the 29th day of September, 1905, the plaintiff was entitled to the sum of $3,788.11 now in court herein (having been paid into court to abide the result of this issue, by the Barnett-McQueen Company, Limited, pursuant to the order hereinafter referred to) being the proceeds of 1,230 spruce and tamarac piles claimed by the plaintiff to have been cut from lot number one in Donnelly’s survey on the west shore of Black Bay, in the Township of McTavish, in the District of Thunder Bay, as against the defendants, who delivered the piles, so claimed to have been cut from the said lot one; to the Barnett-McQueen Company, Limited, prior to the 29th day of September, 1905, which proceeds were alleged by the plaintiff to amount to $3,788.11.
The question is what is to be done with that money. The plaintiff had the right to waive the tort of the conversion of her property by the appellants and to sue for money had and received. Had the money been paid to Greer & Co. by the purchaser that doubtless would have been the form the action would have taken. Under the issue as formulated the right to the money substituted for the ties is the substantial question to be tried. Is the plaintiff, as owner of the trees from which the ties were made, entitled to the moneys paid into court by the purchaser of the ties as against the appellants who wrongfully sold
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them to the purchaser? I think the letters and correspondence shew clearly that the plaintiff did elect to waive the tort and affirm the sale; and that being so, is entitled under the authorities to recover the full amount of the purchase money without deducting the expenses of transport paid by the defendants who converted their property. There may be some hardship in adopting this rule in some cases but the hardship to the owner of only allowing him the actual value of the property when first stolen and at the place where stolen might be very much greater.
Hollins v. Fowler; Smith v. Baker, and the cases collected in Mayne on Damages (3 ed.), p. 343.
The appeal should be dismissed with costs.
IDINGTON J.—The appellants and a company to whom they had sold piles, stolen by those under whom appellants claim, having been sued by respondents for damages, an issue in the nature of interpleader was directed to try whether the appellants or respondent was entitled to the sum the company owed, or but for respondent’s intervention would have owed, as the price of the piles and which is described as “the proceeds” of the piles.
Having regard to the nature of the action, which might have shewn at the next step an action of trover, in which the interpleader order was made, the object of the parties moving for it, the evident purpose of the court in making it, and the further facts that though, as we are told, the appellants protested against its making yet refrained from appealing and fought out the issue, we are precluded from giving effect to
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nice distinctions about the legal meaning of the word “proceeds” or a technical application thereof.
The broad issue presented by the proceedings in this case, and fought out, was the right to the timber, and, as a result thereof, to the money in court substituted therefor by the directions of the court; and no appeal having been taken we may assume the concurrence of or submission of all parties thereto.
The timber from which these piles were made having been stolen from land which (let us assume at present) was vested at the time of the theft in respondent’s husband could he have been prevented from recovering in trover the full value of the piles from the appellants or the company to whom they sold or were selling them? No case was cited to us, though urgently asked for, shewing law or semblance thereof that would have entitled the defendant in such a case to have the value of the piles at the time of the conversion by the party sued therefor reduced to that which the timber was worth when standing on the ground.
In some cases of trover such as the Chinery v. Viall case, arising out of contract, courts have seen their way to reduce the damages below the value of the goods involved at the time of their conversion, but I have not been able to find anything that would help in that way the wilful or negligent tortfeasor much less the bare thief.
I treat the case as one where clearly the title to the piles rested ultimately in theft though I do not wish to imply that the appellants or even all those they claimed through are to be set down as thieves.
Unfortunately the appellants have no higher legal
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right of property than the thieves under whom in tracing title they have to claim.
The coal cases relied on are nearly all cases of trespass to land in which the court has been enabled in dealing with trespassers to weigh, or permit a jury to weigh, the circumstances for there the rule of law being to find the damages done the estate of the plaintiff enabled the distinction if we might call it so.
In truth such a trespass is entirely another case.
In the case of Wood v. Morewood, though a reversioner’s suit, a count in trover presented for consideration from that point of view the results of the wrong done. But in that, or in any like case I have seen with like results, where good faith was assumed the only question was the value of the goods at the time of the conversion thereof, that is when severed from the realty.
In Lamb v. Kincaid, we could not find absolute good faith and a harsher rule was adopted by this court.
The piles in question remained the property of the owner of the land when the appellants first asserted dominion over them which was long after the added value (of which we now hear so much) had been given thereto by the labour of those engaged in the theft, except as to the item of transportation which I will refer to presently.
An action of replevin or trover might have been brought against appellants then but not before.
What right could they have set up to be recouped the money paid, through their mistake or negligence, to the thieves or at all events those representing them?
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This money in court was put there as the price or value the owner of the piles was entitled to. It never could have been supposed otherwise else another form of issue would have been presented.
The form of the issue directed in such a suit and under such circumstances precludes the splitting up process tried in the Divisional Court.
But for that I would have been disposed to have allowed the cost of transportation out of the fund.
If the appellants had been alone sued in trover it does not appear to me that any other damages than the value of the piles lying on the ice when they first asserted dominion over them could have been given.
The action against the company makes the same rule applied to them the test of value when they first asserted dominion and thus the matter has become so complicated that I do not see how, unless we throw all form and law on which it rests to the wind, to do the kind of justice we are asked for here.
The law bearing on the rights of those who have bought stolen property of little value, and increased, and even multiplied, its original value by many improvements and changes of situation I fear must remain as it was for the present.
This leaves nothing for us to consider but whether or not the title shewn by the respondent, who was made the plaintiff in the issue, is such as to uphold the judgment in her favour.
Notwithstanding the opinion entertained by so many, whose judgment is entitled to the greatest respect, I cannot help doubting the sufficiency of the evidence upon which this alleged equitable title rests.
The husband owned the land during all the happenings complained of but on the 2nd June, 1905, conveyed to his wife for one hundred dollars and assum-
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ing she was, as possibly she was, as the result of their bargain or otherwise, the party entitled in equity to the timber when cut and remained so, he instructed, when he discovered what had been done, proceedings in her name. We are not given, as we might have been but for the loose methods prevailing in the proceedings, the title asserted by the claimant on affidavit before the learned judge who made the order. She should have been required before the interpleader order to shew what title she did claim and to adhere to it throughout, unless upon some proper application in chambers that could have been opened up on proper terms.
What happened at the trial in the way of proof of respondent’s title is simply the following:
Mr. Keefer.—Then I will put in, as exhibit 2, the abstract of title, shewing the property in Lot No. 1 west of Black Bay, in the Township of McTavish, in the District of Thunder Bay, to be equitably in Mrs. Faulkner.
His Lordship. Is the abstract admitted?
Mr. Keefer. I think it is, my Lord. I have the registrar here if necessary. Practically it is admitted.
Mr. Blake. As the abstract shews that, yes.
An abstract of title of the lot in question forms part of the case from which abstract it appears the husband bought this lot at a tax sale in March, 1903, and on the 2nd June, 1905, conveyed to his wife the respondent for $100.00.
Is that evidence of any title whatever in these piles though made from timber on that lot in April or May preceding the deed? The husband’s energetic maintenance of the title of his wife may preclude him from hereafter complaining. But how does that warrant any inference of law that a bargain preceded the deed and leading up to it or collateral to it on which to rest any right equitable or otherwise?
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I concede to the fullest extent that by reason of the bargain between the vendor and vendee there may have been created a right in equity to property that the deed of grant, though supposed to execute the bargain, yet failed by reason of mutual mistake to convey. Put a simpler case than this, a bargain for sale of lots A. & B. and by mistake B. is omitted from the deed, no one would deny the right of the vendee to have that rectified and pending rectification to assert as against third parties every right he ought to have had conveyed. Another case may be supposed of the vendor and vendee actually negotiating on the basis of the value of the timber yet keeping to the language of the form of a bargain for fee simple of the land which consisted of little but rocks when the chief subject matter of their mutual consideration and bargaining was the timber. Suppose that timber swept away by fire pending negotiations and then unaware of such fact the transaction is closed; I fancy it would puzzle any one to find a remedy for the unfortunate vendee. But suppose, instead of being swept by fire, pending the negotiations, thieves cut and carried it away, unknown to the parties, surely any court of equity could reach it in the hands of the thieves or any one claiming under them.
I cannot see how in law those owning and claiming such timber could ever be even partially answered by such persons as claimed under thieves, by setting up improvements made by themselves or their predecessors in title, who must ultimately rest such right as had on bare theft.
Now in what different state can the vendee be whose title is only an equitable one from that of one in whom the legal estate vested?
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The equitable owner asserts an equity it is true and appeals to a court of equity which has always acted upon the maxim that he coming into equity must do equity. But for what purpose has he come into court? Not that the thief should give him a title. He had none to give. But to have the vendor convey that which by mutual mistake he had failed to pass.
He seeks to be clothed first with that title he has become entitled to by rights preceding the theft and, once clothed with that, to assert his legal title in the same court in the same action, it may be, as against the thief or the thief’s successors.
Another rule of equity intervenes, as it were, quite as efficacious as the former, and that is that the court assumes that to have been done which ought to have been done and adjudges the right between the parties on that basis.
There is no room for the operation in such a case of the maxim that he seeking equity must do it.
This suggestion that he coming into equity must do equity seemed to me the strongest position the appellants might have been entitled to hold, yet, on reflection and analysis of the matter, as I have just set forth, I find it without a shadow of foundation.
I present the position, which in law I would find the parties in, if all the embarrassments this issue and the making of it have created were swept away and the action had been tried out as originally launched in such a way (including if need be the adding of the husband as a party defendant therein) as to give amplest scope for the parties to assert their equitable rights as well as legal.
I fear it comes back to an assertion of the strong though rough meaning of the common law; and after all I doubt if in the interest of society it better not remain so.
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I am not aware of any case save where founded on trespass to the land any modification, if it be a modification, has crept in as in the coal mining cases.
I would, if parties desire to be satisfied that the timber was intended to pass from husband to wife by virtue of the bargain or whatever right she had antecedent to the cutting, prefer giving a new trial to amending an issue such as this where I do not find we have power to do so any more than the court below which I do not think had such power.
It seems to have been assumed at one time, and as far as I can see by mutual mistake for which I cannot blame any one, that counsel’s admission went further than he can strictly be held to.
I find since writing the foregoing that the majority of the court think we can amend by adding the husband and though somewhat doubtful of that and hesitating at the doing so I am, for reasons set forth above, in accord with the majority on the substantial merits of the case.
MACLENNAN J.—I think this appeal should be dismissed.
It was contended that the action must fail inasmuch as the wood had been cut and removed from the land before the conveyance made by the respondent’s husband to her.
I think that objection would probably have been fatal if we had no power to amend by adding the husband as a party. To this there can be no substantial objection, inasmuch as the husband has been his wife’s active agent in the litigation throughout.
But it is said we have no power to amend an interpleader order.
I do not see why, if we have power to amend the pleadings in an ordinary action, we may not amend
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an interpleader order. The purpose of pleadings is to define the issues which are to be tried, and an interpleader order does no more. Its function is the same.
Then sections 54, 55 & 56 of the “Supreme Court Act” give this court the amplest power of amendment
for the purpose of determining the appeal, or the real question or controversy between the parties, as disclosed by the pleadings, evidence or proceedings.
The respondent’s husband has throughout treated the timber, now represented by the money in court, as the property of his wife, while it turns out that the legal title is in himself, and I think it plain that the proposed amendment can work no legal injury to anyone, and, on the other hand, that unless it be made a failure of justice would be the result.
DUFF J.—With diffidence I cannot agree that this court has power to substitute Greer for his wife as plaintiff in the issue out of which the appeal arises, and consequently, in my opinion, the appeal should be dismissed.
On the merits, assuming the amendment made, I express no opinion.
Appeal dismissed with costs.
Solicitor for the appellants: Wm. McBrady.
Solicitor for the respondent: F.H. Keefer.
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