Supreme Court of Canada
Smith v. Shanklin, [1933] S.C.R. 340
Date: 1933-04-25.
Smith v. Shanklin
1933: March 1; 1933: April 25.
Present: Duff, Rinfret,
Lamont, Smith and Crocket JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE
SUPREME COURT OF NEW BRUNSWICK
Conveyance—Allegation of fraud in
execution—Confidential relationship between the parties—Conveyance set
aside—Lack of independent advice.
APPEAL by the defendant from the judgment of
the Appellate Division of the Supreme Court of New Brunswick, dismissing the defendant’s appeal from the
judgment of Baxter J. in
favour of the respondent plaintiff.
The respondent, as executor of the late G. W.
Shanklin and in his own right, brought an action to set aside a certain
conveyance made by the said G. W. S. to the appellant, the grantee named in the
conveyance. The action was tried before Mr. Justice Baxter who ordered the
conveyance set aside, finding that the execution of the conveyance had been
obtained by fraud and that, owing to the circumstances of the case, the late G.
W. Shanklin should have had independent advice. The Appellate Division
dismissed the defendant’s appeal from that judgment.
[Page 341]
On the appeal to the Court, after hearing
argument of counsel, the Court reserved judgment; and, on a subsequent day,
delivered judgment dismissing the appeal with costs. Written reasons were
delivered by Lamont J. for the court, in which the learned judge, after making
a complete review of all the facts of the case, concluded
i n saying that "under these circumstanced and in view of the evidence, it
cannot be said that the Appellate Division was wrong in affirming the judgment
of the trial judge."
Appeal dismissed with costs.
P.J. Hughes K.C. for the appellant.
D.King Hazen for the respondent.
Email this Content