Supreme Court of Canada
Boulton v. Boulton, (1898) 28 S.C.R. 592
Date: 1898-06-14
Paul F. Boulton and Others (Defendants) Appellants;
and
Louisa L. Boulton (Plaintiff) Respondent.
1898: May 20; 1898: June 14.
Present: Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick and King JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Estoppel—Conveyance by married woman—Agreement—Recital.
B., a married woman, in order to carry out an agreement between her husband and his creditors consented to convey to the creditor a farm, her separate property, in consideration of the transfer by her husband to her of the stock and other personal property on, and of indemnity against her personal liability on a mortgage against, said farm. The conveyance, agreement and bill of sale of the chattels were all executed on the same day, the agreement, to which B. was not a party, containing a recital that the husband was owner of the said chattels but giving the creditor no security upon them. The chattels having subsequently been seized under execution against the husband it was claimed, on interpleader proceedings, that the bill of sale was in fraud of the creditor.
Held, affirming the decision of the Court of Appeal, that the recital in the agreement worked no estoppel as against B.; that as it appeared that the husband expressly refused to assign the chattels to his creditor there was nothing to prevent him from transferring them to his wife, and that the Court of Appeal rightly held the transaction an honest one and B. entitled to the goods and to indemnity against the mortgage.
APPEAL from a decision of the Court of Appeal for Ontario reversing the judgment of Mr. Justice Rose at the trial in favour of the defendants.
The material facts of the case are sufficiently set out in the above head-note and in the judgment of the court.
[Page 593]
Wallace Nesbitt and W.J. Clarke for the appellants.
O’Flynn for the respondent.
The judgment of the court was delivered by:
THE CHIEF JUSTICE.—I am of opinion that the judgment of the Court of Appeal in this case was entirely right.
The respondent, Louisa Boulton, was the owner in her own right of forty acres of land part of the north half of lot 14, in the 7th concession of Sydney. This is the common case of both parties.
This property was subject to a mortgage to the Messrs. Biggar. On the 25th of September, 1891, the respondent in compliance with the earnest entreaties of her husband George A. Boulton, conveyed the equity of redemption in this land to the appellant Paul Boulton, a brother of the respondent’s husband, in order to carry out an agreement of the same date entered into between George A. Boulton and Paul Boulton which had for its principal object the settlement of a debt due from the former to the latter.
It is established by evidence of the most satisfactory kind that the respondent by way of valuable consideration for thus parting with her land stipulated with her husband that he was to transfer to her certain chattel property consisting principally of farm stock and other personal property then upon the farm, and also for indemnity against her personal liability on the mortgage held by the Biggars. It is also clear that George A. Boulton expressly refused when pressed to do so to assign this chattel property to his brother Paul as part of the arrangement for a settlement of the debt.
In pursuance of the agreement under which the respondent conveyed her equity of redemption, George
[Page 594]
A. Boulton made a bill of sale of the goods in question to the respondent on the same day as that on which the agreement with Paul was executed. The principal question in the cause was as to the bona fides of this assignment.
The goods in question having been afterwards seized by the sheriff and interpleader proceedings having been taken, it was asserted that the bill of sale to the respondent was in fraud of Paul. The agreement, although it recited that George was the owner of these goods, gave Paul no security upon them or rights in them and the respondent was not a party to the agreement.
This recital (as a majority of the Court of Appeal have held) manifestly worked no estoppel as regards the respondent and was in fact true. There was moreover nothing in the recital of this fact, and more especially in view of the refusal already mentioned of George to give his brother any security on the goods, to estop George himself from dealing with them in the way he did, namely, by assigning them to his wife as part of the consideration for the conveyance by her of the land to Paul; indeed he could not honestly have refused to carry out his agreement to do so.
Under this state of facts it would be impossible as it seems to me to hold that the bill of sale was fraudulent, and so to take away from the respondent the principal consideration she got for her land. I think the transaction an honest one and that it has been properly upheld by the Court of Appeal.
The only other question is as to the agreement to indemnify the respondent against personal liability under the covenant in the Biggar mortgage. This was, in addition to the chattels, part of the consideration which the respondent had stipulated for in the conveyance of her land.
[Page 595]
The Court of Appeal has held that she was entitled to this indemnity, and in respect of it the court has given her the usual vendor’s lien on the land. This it seems was also right.
Both Mr. Justice Rose and the Court of Appeal have held that the mortgage executed by Paul in favour of Hiram Boulton and the conveyance of the equity of redemption to Alexander Boulton were fraudulent as against the respondent’s claim to a lien for this indemnity.
The only other matter in question was the damages which the Court of Appeal has referred it to the master to assess.
The appeal must be dismissed with costs.
Appeal dismissed with costs.
Solicitor for the appellants: W.J. Clark.
Solicitor for the respondents: F.E. O’Flynn.
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