Supreme Court of Canada
C.P.R. v. Turta, [1954] S.C.R. 427
Date: 1954-05-19
Canadian Pacific Railway Co. Ltd. and Imperial Oil
Limited (Defendants) Appellants
and
Anton Turta (Plaintiff) Respondent;
and
William Sereda, Montreal Trust Co. and Nick Turta
(Third Parties) Respondents.
1954: January 26, 27, 28, 29, February 1, 2, 3; 1954: May 19.
Present: Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock,
Estey, Locke, Cartwright and Fauteux JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF
ALBERTA.
Real Property—Land Titles—Omission by error of
reservation of petroleum in transfer—Issue of certificate of title to transferee—Unauthorized
addition by registrar of "and petroleum" to reservation—Right to
petroleum by subsequent purchasers for value—"Wrong description"
—"Misdescription"—"Prior certificate of title"—The Land
Titles Act, 1906, (Alta.) c. 24.
In 1903 the C.P.R., the owner of a tract of land in what is
now the province of Alberta, registered it under The Land Titles Act of the
Northwest Territories and obtained a certificate of title, No. 424, certifying
it to be the owner thereof in fee simple. By virtue of the Alberta Act, 1905
(Can.) c. 3, the certificate continued in effect under the Alberta Land
Titles Act of 1906, c. 24. In 1908 the C.P.R. transferred from out of the
tract the quarter section now in suit to P reserving the coal and petroleum.
The registrar of land titles however in issuing a certificate of title to P
reserved only the coal and endorsed on certificate No. 424 a memorandum to the
effect that it was cancelled as to P's quarter section. In 1910 P transferred
the east half to S and in 1911 the west half to the respondent Anton Turta. In
1918 S transferred the east half to Turta and the registrar issued a new
certificate to the latter covering the entire quarter section. In all of these
transfers and certificates only coal was reserved to the C.P.R. In 1910
certificate 424, because of the many endorsements on it, was, with the consent
of the C.P.R., cancelled and a new certificate, as well as a duplicate, issued
covering the lands which then remained uncancelled on No. 424. In 1943 the
errors were detected by officials in the land titles office and entries were
made on the cancelled certificate No. 424 as well as on the duplicate by adding
the words "except coal and petroleum" to the memorandum of
cancellation originally made, and by adding the words "and petroleum"
to the reservations in Turta's certificate and the duplicate then in the
office. In 1944 Turta transferred to the respondent Nick Turta the east half of
the quarter section and in 1945 the west half to Metro Turta. The new
certificates
[Page 428]
contained a reservation of coal and petroleum to the C.P.R. In
1946 the latter gave an option to lease all petroleum and natural gas
underlying the quarter section to Imperial Oil which the latter exercised in
1951. In 1950 the respondents, Montreal Trust Co. and Sereda, entered into an
agreement with Anton Turta relative to the petroleum rights and appear as
caveators upon the title.
In an action to determine title to the petroleum rights:
Held: (Rinfret C.J., Locke and Cartwright JJ.
dissenting) that: 1. The omission to insert the reservation of petroleum in the
certificate of title granted Anton Turta did not constitute a misdescription
within the meaning of s. 104(e) of The Land Titles Act.
2. Since certificate of title No. 424 was cancelled prior to
any relevant date, there never was a contemporaneous existence of two
certificates of title within the meaning of s. 104(f).
3. The purported corrections made by the registrar could not
be made without prejudicing the rights conferred for value on Anton Turta, and
therefore were not authorized by the Act and were of no effect.
4. The action was not barred by the Limitation of Actions
Act, R.S.A. 1942, c. 133.
Per: Rinfret C.J., dissenting. The omission by the
registrar to reserve the petroleum in granting the certificate of title to P
was made contrary to the Act and was ultra vires. The certificate was a
complete nullity and could never become the root of title to subsequent
transferees and since the cancellation of certificate No. 424 was the
consequence of the issuance of the certificate to P. it must be set aside for
the same reasons. There was misdescription within the meaning of s. 62 of the
Act as the property transferred to P was described so as to make it include other
land, that is to say the petroleum which falls within the definition of land
under s. 2 (a).
Per: Locke J., dissenting: To include in the lands
described in the certificate of title issued to P the petroleum rights was a
misdescription of the lands conveyed by the transfer from the C.P.R. within the
meaning of that expression in ss. 44, 104 and elsewhere in the Act. The general
statements as to the interpretation of the Victoria Transfer of Land Statute
of 1866 in Gibbs v. Messer [1891] A.C. 248 at 254, and by Sir
Louis Davies C.J. as to The Land Titles Act, 1917, of Saskatchewan in Union
Bank of Canada v. Boulter Waugh Ltd., 58 Can. S.C.R. 385, cannot be
applied without qualification to the Alberta statute. The rights of those
deprived of their property by misdescription of land are expressly reserved to
them by the latter statute and it cannot be construed to defeat such rights.
The rights to the petroleum were adequately excepted from the operation of the
transfer to P.
Per: Cartwright J., dissenting: Ss. 25, 42 and 135, if
read alone would seem to make the certificate of title of a purchaser in goood
faith for value conclusive, but they must be construed with ss. 44, 104 (e)
and 106 and the last mentioned group must be read with them. When so read, the
C.P.R.'s claim falls with s. 104 (e) and no other provision of the Act
requires a restriction or modification of the ordinary meaning of the words
used in such clause.
[Page 429]
APPEAL by defendants from a judgment of the Supreme Court
of Alberta, Appellate Division ,
affirming, C. J. Ford J.A., dissenting, the judgment of Egbert J., declaring plaintiffs' right to
petroleum in certain land.
C. F. H. Carson, Q.C., S. J. Helman, Q.C., I. D.
Sinclair and Allan Findlay for C.P.R.
H. G. Nolan, Q.C. and J. H. Laycraft
for Imperial Oil.
G. H. Steer, Q.C. and G. A. C. Steer for
Anton Turta and Montreal Trust Co.
M. E. Manning for Nick Turta.
The Chief Justice (dissenting):
This case calls for the application of The Alberta Land Titles Act of
1906. If the contentions of the respondents were to prevail, as they were
upheld by the learned trial judge and the majority of the Appellate Division of
the Supreme Court of Alberta, I may say, with respect, that in my opinion, it
would create an intolerable situation. Interpreted as suggested by the
respondents, the statute would do away with all traditional principles of law
and equity. Indeed, I am not sure that it does not boast of such intention,
for, in section 135, the very words are used by the legislator whereby it is
stated:—
Except in the case of fraud no person contracting or dealing
with or taking or proposing to take a transfer, mortgage, encumbrance or lease,
from the owner of any land for which a certificate of title has been granted
shall be bound or concerned to inquire into or ascertain the circumstances in
or the consideration for which the owner or any previous owner of the land is
or was registered or to see to the application of the purchase money or of any
part thereof, nor shall he be affected by notice direct, implied or
constructive, of any trust or unregistered interest in the land, ANY RULE OF LAW
OR EQUITY TO THE CONTRARY NOTWITHSTANDING …". (The capitals are my own).
And, if it were so, I confess that the statute in question
would not fill me with enthusiasm.
But, fortunately, I fully share the dissenting opinion of
Mr. Justice Clinton J. Ford in the Appellate Division . After a most anxious study of
the case, like Clinton Ford J.A., I would allow the appeal and dismiss the
action and
[Page 430]
give to the appellant, The Imperial Oil Co. Ltd., the remedy
asked for in its counter-claim, and to the appellant, The Canadian Pacific
Railway Company, the remedy sought in its third party notice, with costs
against the respondents and the third parties who fought the issues.
Let us face the facts:—On the 19th June, 1908, the Canadian
Pacific Railway Co. transferred to one Podgorny the land in issue
"reserving all coal and petroleum which may be found to exist within,
upon, or under the said land". Upon that transfer the Registrar of Land
Titles purported to grant to Podgorny certificate of title No. 182-N-8 to the
land described as the "north-west quarter of section 17, township 50,
range 26, west of the 4th Meridian, in the said province, containing 160 acres
more or less, reserving to the Canadian Pacific Railway Co. all coal on, or
under the said land". The reservation so limited is the more
extraordinary, because the Registrar evidently relied upon the transfer to
specify that the coal was reserved to the Canadian Pacific Rly. Co.; and, for
no reason that can be imagined, he did not mention in the certificate of title
the petroleum specified in the same reservation.
All courts and all parties in the case have had to admit
that the omission of the petroleum was undoubtedly what they call an error, and
if it is only an error, it borders on stupidity. In fact, it is stupidity of
the most glaring character. I do not call it a simple error. I think either the
granting of the certificate to Podgorny cannot be taken as having included the
petroleum, or, at all events, if it must be understood to include it, it was
done by the stupidity of the Registrar without power, or authority, derived
from The Land Titles Act. The omission, in my view—if it is to be
treated only as an omission—was made contrary to the Act and was ultra
vires. On the other hand, Podgorny, who took and accepted such a
certificate, if he was really under the impression that it gave him title to
the petroleum, acted fraudulently. An attempt was made to excuse him on the
ground that he was ignorant, but, of course, that can never excuse him if such
ignorance is understood to mean that he did not know the law. I am not
inquiring whether he had the mens rea, which would
[Page 431]
have branded him as a criminal, but his action in taking
possession of the certificate, under the circumstances, was certainly a fraud
according to the civil law, because, whether he ignored the law or not, he
could not ignore the reservation of petroleum in the transfer made to him by
the Canadian Pacific Railway Co. Assuming that he understood the certificate of
title to give him the ownership of the petroleum, to which he had absolutely no
right, he then proceeded further to transfer the land, without the reservation
of petroleum to The Canadian Pacific Railway Company, in part to one Sitko and
in another part to the respondent Anton Turta. In the transfer to Sitko no
exception of coal was made, but the certificate issued to the latter reserved
unto The Canadian Pacific Railway Co. all coal on or under the said land. In
the transfer to Turta even the coal was not excepted, but the certificate of
title issued to him contained the reservation "unto the Canadian Pacific
Railway Co. all coal on or under the said land". Later the respondent,
Anton Turta, acquired land which Podgorny had transferred to Sitko and the
reservation of the coal was mentioned in the transfer to him. Then Turta
requested that his titles to the east and west halves of the quarter section be
consolidated and his application for consolidation described himself as the
owner of the east half and the west half of the quarter section without any
exception. However, the certificate of title issued to him for the consolidated
halves of the quarter section did show Turta "reserving unto The Canadian
Pacific Railway Co. all coal".
On January 16, 1943, corrections were made in the Land
Titles Office to certain certificates of the quarter section held by Podgorny,
Sitko and the respondent Anton Turta. These corrections were made by one, H. T.
Logan, a solicitor, who was acting Deputy Registrar at the time. By these
corrections petroleum was excepted from the land described in the certificates
of Podgorny, Sitko and Anton Turta; and since petroleum had been excepted and
reserved to The Canadian Pacific Railway Co. in its original transfer of the
quarter section to Podgorny, the corrections brought these certificates into
accord with that original transfer.
[Page 432]
On April 17, 1944, Anton Turta transferred to Nick Turta,
his son, and one of the third party respondents, the east half of the
north-west quarter of section 17, "reserving unto The Canadian Pacific
Railway Co. all coal and petroleum"; and the certificate of title issued
as a consequence to Nick Turta showed him to be the owner of the east half in
question "reserving unto The Canadian Pacific Railway Co. all coal and
petroleum".
Anton Turta, on the 30th December, 1944, transferred to his
son, Metro Turta, and his daughter-in-law, Bessie Turta, the west half of the
north-west quarter of section 17, "reserving unto The Canadian Pacific
Railway Co. all coal and petroleum". Accordingly, the certificate of title
issued to Metro and Bessie Turta showed them to be the owners of the west half
of the quarter section "reserving unto The Canadian Pacific Railway Co.
all coal and petroleum".
By an encumbrance dated December 30, 1944, Metro and Bessie
Turta, describing themselves as the registered owners of the west half of the
quarter section "reserving unto The Canadian Pacific Railway Co. all coal
and petroleum", encumbered the land as security for the performance by
them of the terms of an agreement between them and Anton Turta of the same
date. The agreement attached to the encumbrance states that it was executed by
Anton Turta, as well as by Metro and Bessie Turta, and in the said agreement
the fact that there was "reserved to the Canadian Pacific Railway Co. from
the land all coal and petroleum" appears eight times.
By the amended Statement of Claim, Anton Turta claimed a
declaration that he is entitled to be registered as owner of all the petroleum
in, upon and under the quarter section, and that the substitutions and
alterations made to various documents to show the contrary were wrongful.
The learned trial judge held that Anton Turta was entitled
to the declaration claimed and found it unnecessary to deal with the claim for
title by prescription, which Turta had inserted in his statement of claim. It
is significant that the learned trial judge, having found that Anton Turta
could not understand English, held as a fact that he acquired the quarter
section involved in this action for a farm and that he knew nothing about
minerals at the time
[Page 433]
and did not discuss them with either Podgorny or Sitko and
placed no value on them. He also found that all the corrections of the
certificates of title made on January 16, 1943, were a complete nullity. In the
learned trial judge's view the Registrar had power, by s. 174 of The Land
Titles Act, merely to correct clerical errors as between parties to the
transaction and did not have power to make the alterations of the instruments
in question, thereby prejudicing rights conferred for value. He also held that
s. 174 was governed by s. 159 so that if Anton Turta was a bona fide purchaser
for value, and there was no misdescription, s. 174 did not confer powers on the
Registrar to deprive him of his land. The learned trial judge found that Anton
Turta gave valuable consideration for everything comprised in his vendors'
certificates, including petroleum, and that he dealt "upon the faith of
the register" in the sense that he transacted on the "basis" of
the register, although he never saw it. Accordingly, he held that Anton Turta
was a bona fide purchaser for valuable consideration; and, by virtue of s. 106
of the 1906 Act, his title was indefeasible unless there was a prior
certificate of title or there had been misdescription. He was of the opinion
that for the exception of prior certificate the Act contemplates two
contemperaneous certificates of title for the same land and that in this case
there was never more than one certificate. As to misdescription, His Lordship
considered that there must be "other land" to bring the case within
s. 104, and that here there was only one parcel involved. He thought that
"misdescription" is a narrower term than "error", as used
in s. 106, and that this is a case of error.
The Appellate Division
affirmed the judgment of the trial judge, Mr. Justice C. J. Ford dissenting.
The Chief Justice of Alberta, although he concurred in the judgment of the
majority, stated that he did so reluctantly, because, in his opinion, the
result of the decision is to take from The Canadian Pacific Railway Co. without
its consent and without consideration what may prove to be valuable oil rights
and give them to the respondent who never expected to get them.
[Page 434]
Parlee J.A., with whom Frank Ford and Macdonald JJA.
concurred, found that Anton Turta bought the quarter section as a farm and was
not interested in any minerals or aware of any reservation until after the
discovery of petroleum in Leduc in 1947. He found that, although the Registrar
was in error in granting the certificate to Podgorny, there was no error by the
Registrar when certificates were granted to Anton Turta. As to the contention
of The Canadian Pacific Railway Co. that it had a prior certificate of title,
he held that the certificate of the latter, No. 424, was effectively cancelled
and the Act requires two contemporaneous certificates, and that, in any event,
such a contention disregards the plain language of s. 106 of the 1906 Act. As
to misdescription, he held that since there was involved only one parcel of
land throughout, it was a case, not of misdescription, but of error in the
Registrar's office. Dealing with the alterations subsequently made in the
Registrar's office, Parlee J.A. held there was a nullity; and, in his view, the
Registrar had no authority to make corrections which prejudiced rights
conferred for value.
As for Mr. Justice C. J. Ford, who dissented, he was of
opinion that the Registrar had registered Podgorny as the owner of petroleum
under his land, contrary to The Land Titles Act of 1906, and, therefore,
such title was void. The creation of an unauthorized title did not cancel an
existing title and, in his opinion, the purported cancellation of certificate
C.P.R. 424 was a nullity. He held, therefore, that The Canadian Pacific Railway
Co. has a title prior to Anton Turta's, with the right to recover possession.
He also held that Anton Turta's claim for title by prescription, based on
actual or constructive possession of minerals under colour of title, failed
because the Canadian Pacific Railway Co. had a separate estate in minerals,
which could not be defeated by mere non-user. He found it unnecessary to deal
with the points raised by The Canadian Pacific Railway Co. and Imperial Oil Co.
Ltd. as to The Limitation of Actions Act and whether Anton Turta
acquiesced in the corrections. He would, therefore, have dismissed the action
and have allowed the remedies sought by The Canadian Pacific Railway Co.
[Page 435]
With great respect, I am of opinion that sufficient
attention has not been given in the Courts below to the definition of the word
"land" in section 2(a) of the 1906 Act. That section (as
re-enacted in 1945, c. 58. s. 1) reads as follows:—
2. In this Act, unless the context otherwise requires,—
(1) "Land" or "Lands" means lands,
messuages, tenements and hereditaments, corporeal and incorporeal, or every
nature and description, and every estate of interest therein, whether such
estate or interest is legal or equitable, together with paths, passages, ways,
watercourses, liberties, privileges and easements appertaining thereto and
trees and timber thereon, and mines, minerals and quarries thereon or
thereunder lying or being, unless any such are specially excepted.
It is common ground that petroleum is a mineral, and it is
also clear that under the above definition, minerals are "land". In
the transfer from The Canadian Pacific Railway Co. to Podgorny, it may be
repeated, coal and petroleum were specifically excepted and reserved to The
Canadian Pacific Railway Co. The dissenting judge in the Appellate Division
refers to the dicta of Blackburne C.J., in McDonnell v. McKinty :—
The excepting of the quarries in the deed of 1738 severed
them both as to estate and possession from the estate in possession of the
lands ; in both respects they became thereon separate and distinct; the
grantor's estate and possession of the quarries remained unaffected; and he
retained them as he had them; they were never out of him. Cardigan v. Armitage
.
The learned judge also referred to Farquharson v. Barnard
Argue Roth Stearns Oil & Gas Co.,
where Boyd C. expressed a similar view, stating that the possession of the
surface owner is not adverse to or inconsistent with the possession in law of
the subjacent proprietor, and referred to Hodgkinson v. Fletcher
The judgment of Blackburne C.J. was approved by the Privy
Council in Agency Co. v. Short ,
in which Lord Macnaghten said:—
We entirely concur in the judgment of Blackburne C.J., in McDonnell
v. McKinty, and
the principle on which it is founded.
According to these authorities, therefore, the coal and
petroleum excepted and reserved in the transfer to Podgorny were severed from
the estate transferred to the latter
[Page 436]
and they became separate and distinct from the estate. This
would seem to indicate that as a result of such a transaction and from then on
there should have been in the Registry Office separate records for the land and
for the coal and petroleum. As a consequence, at all events, the coal and
petroleum could no longer be regarded as being part of the land itself for
registration purposes; and it would be arguable that when the certificate of
title was issued to Podgorny without mention of petroleum it did not transfer
the petroleum to Podgorny, since it was not specifically included and petroleum
was correctly treated as being a separate land. I must confess, however, that
the judgments below gave no attention to such an argument and they treated the
certificate issued to Podgorny as including the petroleum, because the latter
was not excepted and reserved in that certificate. But, on that ground, it follows
that the issuance of the certificate to Podgorny, if it is to be regarded as
having transferred the petroleum to him, was not a mere error, but really a
certificate of ownership to a land (petroleum), to which he had no right
whatever, to which he was in no way entitled, which was contrary to his
transfer from The Canadian Pacific Railway Co., and, therefore, a certificate
made not in accordance with The Land Titles Act, altogether outside the power
and authority of the Registrar and ultra vires.
It is very well to say that the certificate of title is the
whole thing under The Land Titles Act, or, if you wish, under the
so-called Torrens System; but it must necessarily be a certificate which the
Registrar has power to issue. The title may be indefeasible, although it
admittedly contains errors made by the Registrar; but, in order to receive the
protection of the Act, the certificate must have been issued in accordance with
that Act. The Act does not protect a certificate issued without power, or
authority. It is already bad enough that this Registrar, after having created
the mess in which the parties in this case found themselves, is not made
responsible for his errors. I would venture to say that he is the only man on
earth who is not held responsible under the law for his errors. Indeed, he is
invited to make errors, since he is told by the law that that will entail no
responsibility on
[Page 437]
his part. He is invited to be negligent. However, he can
only escape responsibility when he is acting within his powers and, in this
case, he was not acting within them1 when he issued the certificate
which is claimed to have covered the petroleum. So far as it may be held that
it did, I respectfully am of opinion that it was a complete nullity and could
never become the root of a title to subsequent transferees.
The Court is asked to decide that notwithstanding the
erroneous and illegal actions of the Registrar in delivering the certificate of
title to Podgorny, all those objections are not available to The Canadian
Pacific Railway Co. because Podgorny fraudulently transferred the estate, as it
appeared in his certificate of title, to Anton Turta and Sitko, on the
reasoning that they were bona fide purchasers for valuable consideration. The
evidence of Anton Turta discloses that he bought the property to farm and that
he put no value on any minerals in his transfer, or his title. In fact, he did
not know whether Podgorny's title covered any minerals and in the amount which
he paid Podgorny not a single dollar was intended to cover the value of the
petroleum. Podgorny did not intend to sell or transfer petroleum and Sitko and
Anton Turta did not intend to buy petroleum. As a matter of fact, they did not
even suspect the existence of any petroleum. We are now asked to say that under
those circumstances they gave valuable consideration for that mineral. I cannot
bring myself to believe that someone may be held to have given valuable
consideration for a thing he does not intend to buy and the existence of which
he does not even suspect.
I also fail to see how a purchaser can be held to have
acquired in good faith something which he never intended to purchase and which,
as far as he was aware, was non-existent.
Of course, if the reference in so many reported cases to
acquiring land "on the faith of the register" was to be applied in
the present appeal and considered as meaning that the purchaser should at least
consult the register, we have it in the present case that neither Sitko, nor
Turta, took the trouble of consulting it. Now it is contended that under this
registration system the certificate of title is the
[Page 438]
whole thing and nothing else should be considered. On that
ground it is claimed that Podgorny's certificate of title, although admittedly
erroneous, must stand and is valid under The Land Titles Act. If that be
so, I cannot understand why a different interpretation is given to the
certificate of title which the third parties got from the Registrar and in
which the coal and petroleum were excepted and stated to be reserved for The
Canadian Pacific Railway Co. If the initial error made when the certificate to
Podgorny was issued is of no account, then why should not the so-called error
by the Registrar in making corrections to the title and in issuing certificates
of title to third parties be equally considered as decisive? In the case of
these third parties, the certificates of title which they received from the
Registrar excepted and reserved the coal and petroleum for The Canadian Pacific
Railway Co. I cannot understand how under the same statute the initial
certificate to Podgorny must be reverently regarded as sacred, notwithstanding
the admitted error, and the certificates of the third parties, on the contrary,
should be held to contain illegal corrections. There are provisions in the
statute authorizing the Registrar to make corrections and the only objections
that were made were that they did not follow the procedure outlined in the
statute itself. In those cases, I would consider that the corrections were mere
irregularities, while the issue to Podgorny of a certificate covering, as is
contended, the petroleum was an action which the Registrar had absolutely no
power to make. The third parties accepted the certificates which they got and
which included the exceptions and reservations in favour of The Canadian
Pacific Railway Co. I would not think that they should now be permitted to say
that those insertions by the Registrar were inoperative. Anton Turta brought
his action after the corrections had been made and after the certificates of
title to the third parties had been issued with the exceptions and reservations
in favour of The Canadian Pacific Railway Co. His interest in bringing an
action of the character which we have before us could very well be disputed, as
he had parted with the property. He is apparently bringing the action so as to
make good the title which his transferees have accepted. They, and not Anton
[Page 439]
Turta, would get the benefit of the decisions of the Courts
on that point. The corrections made in 1943 in the Register have at least the
value of admissions by the keeper of the register that errors had been made
when the certificate was issued to Podgorny.
There are several other questions which were raised in this
case and which were not decided adversely to the appellants in the judgments
appealed from. If I thought that a decision on those questions was necessary
for the conclusion at which I have arrived, I would adopt the reasoning of the
dissenting judge in the Appellate Division with regard to them.
Only one word should be added in respect to the cancellation
of certificate No. 424 of The Canadian Pacific Railway Co., because it seems to
me to follow that if the Registrar had no authority to issue a certificate to
Podgorny covering the petroleum, equally he lacked authority to cancel
certificate No. 424 in full as he did. That cancellation was the consequence of
the issue of the certificate to Podgorny and must be set aside for the same
reasons for which, in my opinion, the certificate of title itself should be
held to be ultra vires. I am unable to read the statute so as to make it
validate all that has been done by the Registrar in this matter. I have no
doubt The Canadian Pacific Railway Co. could ask the Court for permission to
raise those questions against the respondent Anton Turta and the respondent
third parties, even though they were held to be bona fide purchasers for
valuable consideration, which, as I said above, I do not consider them to be.
If, according to the definition of "land" in the statute, the
petroleum was a land by itself, separate from the rest of the estate, then this
at least is a case of misdescription as required by the statute to enable The
Canadian Pacific Railway Co. to dispute the title of the respondents. This case
would constitute misdescription within the meaning of s. 62 of The Land
Titles Act. It is argued that in order to have a case of misdescription
there must be "other land involved", but there is other land involved
in the premises. The petroleum coming under the definition of land by force of
the statute and the insertion of the petroleum in the description of the
property in the certificate of Podgorny does involve other land, and I do not
see how, in that respect, the decision in
[Page 440]
Hamilton v. Iredale can be distinguished. It is cited in
the reasons for judgment of Parlee JA. and a portion of the head note reads as
follows :
Wrong description is where an applicant intending to
describe Blackacre describes Whiteacre, or so describes Blackacre as to make it
include Whiteacre. It is not wrong description where the applicant correctly
describes the land he is applying for, though the land is not his. It is then a
case of no title …
In the present case the property transferred to Podgorny was
described so as to make it include another land, that is to say, the petroleum
belonging to The Canadian Pacific Railway Co., and such misdescription opens
the way to The Canadian Pacific Railway Co. to urge the claim that it now
makes.
On the whole, as stated at the beginning of this judgment,
and for the above reasons I would allow the appeal, dismiss the action and give
the appellants the remedies prayed for by them, with costs throughout.
The judgment of Kerwin, Taschereau, Estey and Fauteux JJ.
was delivered by:
Estey J.:—The
respondent Anton Turta has been, both by the learned trial judge and the
majority of the learned judges in the Appellate Division , declared to be the owner of the
petroleum in the N.W. ¼ of Section 17, Township 50, Range 26, W. of the
4th Meridian, Province of Alberta, on the basis that he is an owner thereof to
whom a certificate of title was granted March 12, 1918, reserving only the coal
to the Canadian Pacific Railway Company. The appellant Canadian Pacific Railway
Company contends that, having received this quarter section in a grant from the
Crown in 1901 and never having transferred the petroleum, it was and still
remains the owner thereof, notwithstanding the issue of the certificate of
title to Anton Turta, a purchaser bona fide for valuable consideration.
The C.P.R. acquired the quarter section as part of a grant
dated July 13, 1901, brought it under The Land Titles Act of the
Northwest Territories on March 9, 1903, and as of the same date was granted
certificate of title
[Page 441]
No. 424. By virtue of s. 16 of the Alberta Act (4
& 5 Edw. VII, c. 3) that statute and the certificate of title No. 424
continued in effect after Alberta became a province.
On June 19, 1908, the C.P.R. transferred this N.W. ¼ of 17
to Mike Podgorny, reserving coal and petroleum. When this transfer was
registered in the land titles office on July 13, 1908, the registrar, in
preparing Mike Podgorny's certificate of title, reserved only the coal to the
C.P.R. At the same time the registrar indorsed a memorandum on certificate of
title No. 424 to the effect that it was cancelled so far as it affected this
N.W. ¼ of 17. These errors were not detected at the time, nor, indeed,
until 1943, some time after Podgorny had disposed» of the quarter section.
On February 2, 1910, Podgorny transferred all his estate and
interest in the E. ½ of this ¼ section to Andrew Sitko, when a new
certificate of title was issued to the latter, reserving the coal, but not the
petroleum, to the C.P.R.
On September 2, 1910, apparently because certificate of
title No. 424 contained so many indorsements, that certificate was cancelled
and a new certificate No. 2687 was issued to the C.P.R. The registrar, at that
time, placed an indorsement on certificate No, 424 to the effect that it was
cancelled in full.
On November 10, 1911, Podgorny transferred the W. ½ of the
N.W. ¼ to Anton Turta without any reservation, but on May 2, 1912, when
this transfer was registered, the registrar, again apparently relying upon the
certificate already issued to Podgorny, reserved only the coal to the C.P.R. On
February 23, 1918, Sitko transferred the E. ½ to Anton Turta, reserving coal,
and on March 12, 1918, this transfer was registered and, at Turta's request,
the registrar issued to him one certificate of title covering the entire
quarter section, reserving the coal to the C.P.R.
In 1943, in the course of an investigation by the officials
in the land titles office, these errors were detected and corrections made upon
the original certificate issued to Podgorny and all subsequent certificates of
title relative to this quarter section. These corrections, if valid, reserved
the petroleum to the C.P.R.—in other words, so far as this
[Page 442]
quarter section was concerned, corrected the error made by
the registrar in July, 1908, and showed both coal and petroleum reserved to the
C.P.R.
Anton Turta transferred the E. ½ of this ¼ section
to Nick Turta, to whom certificate of title was issued as of May 21, 1944.
Anton Turta also transferred the W. ½ of this ¼ section to Metro Turta
and the latter's wife Bessie Turta, to whom certificate of title was issued
under date of January 3, 1945. In both of these latter certificates the coal
was reserved and, by virtue of the corrections made in January, 1943, and above
referred to, the petroleum was also reserved to the C.P.R.
The C.P.R., as of August 2, 1946, gave an option to Imperial
Oil Limited to lease all petroleum and natural gas underlying this N.W. ¼ of
17. Imperial Oil Limited exercised this option and under date of March 6, 1951,
became the lessee of the petroleum. The Montreal Trust Company and William
Sereda entered into an agreement with Anton Turta relative to the petroleum
rights and appear as caveators upon the title.
The immediately preceding paragraphs explain the presence of
the parties hereto other than the C.P.R. and Anton Turta. The main issues,
however, arise between the C.P.R. and Anton Turta and must be determined upon a
consideration of the C.P.R.'s transfer to Podgorny, the effect of the error in
the land titles office in granting a certificate of title to Podgorny, the
subsequent cancellation thereof and the issue of a new certificate of title to
Anton Turta, a purchaser bona fide for valuable consideration.
Anton Turta's certificate of title dated March 12, 1918, was
granted under The Land Titles Act (S. of Alta. 1906, c. 24) which
continued in that province the Torrens system of land registration adopted in
the Northwest Territories when in 1886 Parliament enacted the Territories
Real Property Act (S. of C. 1886, c. 26). As the main issues must here be
largely determined upon a construction of certain sections of the 1906 Land
Titles Act, it will be of assistance, while giving full effect to the
language thereof, to keep in mind the intent and purpose of the
[Page 443]
Legislature in continuing this system. In the preamble to The
Territories Real Property Act of 1886 this intent and purpose is expressed
as follows:
Whereas it is expedient to give certainty to the title to
estates in land in the Territories and to facilitate the proof thereof, and
also to render dealings with land more simple and less expensive:
In this Court Sir Louis Davies C.J., in Union Bank of
Canada and Phillips v. Boulter Waugh Ltd., , in referring to the Saskatchewan
statute, which is similar to that of Alberta, quoted from a New Zealand case at
387:
The cardinal principle of the statute is that the register
is everything and that, except in cases of actual fraud on the part of the
person dealing with the registered proprietor, such person, upon registration
of the title under which he takes from the registered proprietor, has an
indefeasible title against all the world. Fels v. Knowles .
Chief Justice Harvey of Alberta gave expression to a similar
view:
The principle of the Act is that a person may ascertain the
state of the title by a reference to the records of the land titles office and
the person who is the registered owner has the right by transfer duly
registered to convey a good title to a bona fide purchaser subject only to what
appears on the register and the reservations and exceptions of Sec. 58 (i.e.
Sec. 44 of the 1906 Act). It is registration that gives and extinguishes title
… Dobek v. Jennings .
Lord Watson in Gibbs v. Messer , a case from Australia, stated at p.
254:
The object is to save persons dealing with registered
proprietors from the trouble and expense of going behind the register, in order
to investigate the history of their author's title, and to satisfy themselves of
its validity. That end is accomplished by providing that every one who
purchases, in bona fide and for value, from a registered proprietor, and enters
his deed of transfer or mortgage on the register, shall thereby acquire an
indefeasible right, notwithstanding the infirmity of his author's title.
The foregoing preamble and quotations, as well as others to
similar effect, emphasize that the Torrens system is intended "to give
certainty to the title" as it appears in the land titles office. That one
who is named as owner in an uncancelled certificate of title possesses an
"indefeasible title against all the world", subject to fraud and
certain specified exceptions, while one who contemplates the acquisition of
land may ascertain the particulars of its title at the appropriate land titles
office and deal
[Page 444]
with confidence, relying upon the information there
disclosed. Moreover, it contemplates that those who acquire a registerable
interest in land will, without delay, effect registration thereof and avoid
possible prejudice. That such a system may from time to time impose hardships
is obvious and, therefore, in addition to preserving actions against the
wrongdoer, the legislature has provided an assurance fund out of which, in
appropriate cases, compensation may be paid to those who suffer a loss.
The foregoing features of the system are embodied in The
Land Titles Act of 1906. Under s. 23 a transfer becomes "operative
according to the tenor and intent thereof" upon its registration. Section
41 provides that
upon the registration of any instrument … the estate or
interest specified therein shall pass … subject to the covenants, conditions
and contingencies set forth and specified in such instrument …
Anton Turta, in contracting with Podgorny and Sitko, the
registered owners, was not, as provided in s. 135, "bound or concerned to
inquire into or ascertain the circumstances" under which Podgorny obtained
his title. Indeed, Turta rests his rights upon the fact that he had, bona fide
and for valuable consideration, become the owner of N.W. 17 and having been
granted a certificate of title which included the petroleum, he cannot now be
deprived thereof. In this connection the provisions of s. 42 are relevant and,
in part, read:
The owner of land for which a certificate of title has been
granted shall hold the same subject … to such encumbrances … notified on the
folio of the register which constitutes the certificate of title absolutely
free from all other encumbrances, liens, estates or interests whatsoever, except
in case of fraud wherein he has participated or colluded and except the estate
or interest of an owner claiming the same land under a prior certificate of
title granted under the provisions of this Act or granted under any law
heretofore in force relating to title to real property.
The contention of the C.P.R. is founded largely upon ss. 44,
104(e) and 106 and particularly the exceptions thereto. Section 44
reads:
44. Every certificate of title granted under this Act shall
(except in case of fraud wherein the owner has participated or colluded) so
long as the same remains in force and uncancelled under this Act be conclusive
evidence in all courts as against His Majesty and all persons whomsoever that
the person named therein is entitled to the land included in the same, for the
estate or interest therein specified, subject to the exceptions and
reservations mentioned in the next preceding section, except so far as regards
any portion of land by wrong description of boundaries or parcels
[Page 445]
included in such certificate of title and except as against
any person claiming under a prior certificate of title granted under this Act
or granted under any law heretofore in force relating to titles to real
property in respect of the same land; and for the purpose of this section that
person shall be deemed to claim under a prior certificate of title who is
holder of or whose claim is derived directly or indirectly from the person who
was the holder of the earliest certificate of title granted, notwithstanding
that such certificate of title has been surrendered and a new certificate of
title has been granted upon any transfer or other instrument.
This section makes a certificate of title conclusive
evidence in a court of law except in a case of fraud and the two further
exceptions therein set out. It is with the latter two we are here mainly
concerned and for convenience they may be repeated and lettered (a) and
(b). These are (a) "so far as regards any portion of land by
wrong description of boundaries or parcels included in such certificate of
title" and (b) "as against any person claiming under a
prior certificate of title".
These exceptions (a) and (b) are more
particularly provided for in s. 104(e) and s. 104(f) and it will
be convenient to deal first with (a).
In s. 106 "any purchaser or mortgagee bona fide for
valuable consideration" who is a registered owner shall not be subject to
an action for recovery of damages or of ejectment, or to deprivation of land,
on the ground that his transferor had become registered as owner through fraud
or error, or had derived his title from or through a person registered as owner
through fraud or error, "except in the case of misdescription, as
mentioned in section one hundred and four". Section 106 further emphasizes
the protection the Act provides to one who bona fide deals with the registered
owner. Even if his transferor becomes registered owner thereof through fraud or
error, the former is protected "except in the case of misdescription, as
mentioned in section one hundred and four". This s. 104 sets forth a
general provision that no action of ejectment or other action for recovery of
land for which a certificate of title has been granted shall lie or be
sustained against the owner unless his case comes within one of the six
exceptions there specified. In the exception under clause (e) provision
is made for "the case of a person deprived of or claiming any land
included in any grant or certificate of title of other land by misdescription
of such
[Page 446]
other land or of its boundaries, as against the owner of
such other land". This clause contemplates one person claiming land, which
has been included in a certificate of title of other land by misdescription of
that other land or of its boundaries, against the owner of that other land. In
other words, this section contemplates a contest between two parties in respect
to a piece of land which has been wrongly included in a certificate along with
other land.
Counsel for the appellants contend that as petroleum is a
mineral it is land as defined in s. 2(a) and that its omission as a
reservation by the registrar in the certificate of title issued to Podgorny
constitutes misdescription within the meaning of s. 104(e) and,
therefore, the C.P.R. can claim that petroleum against Anton Turta by virtue of
the provisions of s. 106. As the word "misdescription" in s. 106 is
as mentioned in s. 104(e), this issue turns upon the meaning of the
phrase "misdescription of such other land or its boundaries" as it
appears in the latter. This clause must be read and construed not only with ss.
44 and 106, but with the other provisions of the statute. In s. 44 the words
are "by wrong description of boundaries or parcels" and in s. 104(e)
"misdescription of such other land or of its boundaries", and it may
be added that in s. 121 the words are "misdescription of the boundaries or
parcels of any land". In s. 122 the owner of several parcels of land held
under separate certificates may have these cancelled and consolidated into one
or more, provided "that no one certificate shall include or refer to a
greater area than six hundred and forty acres of land". These words
"other land", "boundaries" and "parcels" in this
context indicate that the legislature had in mind those areas of land defined
in the surveys made under the Dominion Lands Act of 1883 (46 Vict., c.
17) and The Alberta Surveys Act, 1931 (S. of Alta., c. 47), or such
modification thereof as may, by The Land Titles Act, be permitted.
The relevant language in the transfer to Podgorny, under
which the C.P.R. reserved the petroleum and the omission of which reservation
from the subsequent certificates it now claims to constitute a misdescription,
is as follows:
all their estate and interest in the said parcel of land,
excepting and reserving unto the Canadian Pacific Railway Company, their
successors and assigns, all coal and petroleum which may be found to exist
within, upon, or under the said land.
[Page 447]
The foregoing does not expressly provide for the right to
enter upon, drill for and take possession of the petroleum. Even if, however,
it be construed as a profit à prendre, when regard is had to the
"vagrant and fugitive" nature of petroleum it would seem that the
legislature did not intend that its omission by the registrar in a certificate
of title would constitute a "misdescription of such other land or its
boundaries" within the meaning of s. 104(e). That this phrase
should receive a limited or restricted construction finds support, not only in
the fact that it appears as an exception in s. 104(e) and as it is
imported into s. 106, but also in the provisions of s. 108. In the latter it is
contemplated that a "person deprived of any land … by any error, omission
or misdescription in any certificate of title …" may be barred from
recovery of either the land or damages from parties involved and thereafter,
and in that event only, may he "bring an action against the registrar as
nominal defendant" for damages.
It is contended that the registrar had authority to cancel
C.P.R. certificate of title No. 424 and issue a new certificate of title to
Podgorny only in so far as the transfer to the latter directed and, as the
registrar exceeded those directions, the certificate of title to Podgorny was
not a certificate within the meaning of the Act and, therefore, a nullity and,
as a consequence, the certificate of title issued to Anton Turta was also a
nullity. Ss. 23, 41 and 46 are referred to as supporting the foregoing
contention. S. 23 provides that an instrument upon registration "shall
become operative according to the tenor and intent thereof". S. 41
provides: "Upon the registration of any instrument in the manner
hereinbefore prescribed the estate or interest therein shall pass". S. 46
provides that "After the certificate of title for any land has been
granted no instrument shall be effectual to pass any interest therein … unless
such instrument is executed in accordance with the provisions of this Act and
is duly registered thereunder; …"
Nowhere throughout the statute is it provided that failure
upon the part of the registrar to comply with these provisions, or that any
omission, mistake or misfeasance on his part, in the preparation of a
certificate of title, shall
[Page 448]
render that certificate a nullity. That such was not the
intention of the legislature is evidenced by the provisions under which a
certificate of title may be corrected and damages claimed in the event of
omission, mistake or misfeasance on the part of the registrar, his officers or
clerks. There are also those provisions which contemplate the correction of the
registrar's omissions in a certificate such as that issued to Podgorny while it
remained outstanding and those other provisions under which the position is
entirely changed when Podgorny's certificate is cancelled and a new certificate
of title issued to one in the position of Anton Turta. Once the certificate is
issued to Turta it derives its force and validity, not from the transfer of the
C.P.R. to Podgorny, but by virtue of the provisions of the statute.
Anton Turta's position is set forth in s. 42 which provides
that he holds his certificate of title, apart from the encumbrances, liens,
estates or interests noted thereon, absolutely free from all other estates or
interests except in two cases—that of fraud and of an owner claiming under a
prior certificate of title. The position of a person dealing with Turta is set
forth in s. 135, where it is clear that except in the case of fraud a person
who contemplates the acquisition of land may rely upon the certificate of title
and shall not be "bound or concerned to inquire into or ascertain the
circumstances in or the consideration for which the owner or any previous owner
of the land is or was registered …"
Then as to the contention under what I have referred to as
exception (b) of s. 44, to the effect that the C.P.R. holds a prior
certificate of title dated March 9, 1903, and numbered 424 to that of Anton
Turta dated March 12, 1918, and, therefore, by virtue of the provisions of s.
104(f) it is still entitled to the petroleum, the difficulty is that
certificate of title No. 424 was cancelled prior to any relevant date under
this exception. It was cancelled, so far as the N.W. ¼ of 17 is concerned, July
13, 1908, when certificate of title was issued to Podgorny. Then again on
September 2, 1910, when certificate of title No. 2687 was issued to the C.P.R.,
which did not include N.W. 17 or any portion thereof, certificate of title No.
424 was cancelled in full. I respectfully agree with the majority of the
[Page 449]
learned judges in the Appellate Court that the learned trial
judge correctly stated the effect of clause (f) when he said that this
statutory provision contemplates "the contemporaneous existence of two
certificates of title for the same land". The facts of this case,
therefore, cannot be brought within the meaning of clause (f) inasmuch
as at all times relevant hereto the C.P.R. did not possess a certificate of
title relative to the petroleum in the N.W. ¼ of 17.
In January, 1943, the registrar, in the exercise of the
authority that he deemed he possessed by virtue of s. 160(2) of The Land
Titles Act (R.S. Alta. 1922, c. 133), attempted to correct the certificate
of title issued to Podgorny July 13, 1908, by noting thereon a reservation of
the petroleum to the C.P.R. At the same time he made a similar notation on the
certificates of title issued to Sitko and Anton Turta and, as the property was
subject to a mortgage and Turta's duplicate certificate was in his possession,
he made a similar notation on that duplicate. The relevant portion of s. 160(2)
reads:
160(2). If it appears to the satisfaction of the Registrar …
that any entry or indorsement has been made in error on any certificate of
title or other instrument, … he may, … so far as practicable without
prejudicing rights conferred for value, … correct any error in such certificate
of title or other instrument, or in any entry made thereon …
These corrections made by the registrar could not be made
without prejudicing the rights of Turta, as these were determined by the
certificate of title issued to him, and, therefore, he exceeded his
jurisdiction. Whatever the words "so far as practicable" may mean,
they do not limit the words immediately following: "without prejudicing
rights conferred for value".
In Saskatchewan a similar view was expressed in Re Land
Titles Act . I
am, therefore, of the opinion that the corrections made by the registrar were
not authorized by The Land Titles Act and, therefore, of no effect.
The appellants' submission that, as this action was not
brought within a period of six years, it is barred by the provisions of s. 5(1)
(j) of the Statute of Limitations (R.S. Alta. 1942, c. 133) cannot be
maintained. In support of this contention the appellants rely upon observations
of Jessel, M.R., in Gledhill v. Hunter , and applied to
[Page 450]
provisions of The Land Titles Act in Alberta in Sutherland
v. Rural Municipality of Spruce Grove ; Pelletier v. Municipal
District of Opal ; in
Re Land Titles Act . In
these cases an action for a declaration of title without a claim for possession
was held to be not an action for recovery of land. A reference to the pleadings
in this case discloses that respondent Anton Turta asks for a declaration that
he has "been in lawful possession" of the petroleum. The appellant
C.P.R. denies Turta's possession and pleads, inter alia, that it has at
all material times been both the owner and in possession of the petroleum. Moreover,
the appellant Imperial Oil Limited alleges that Turta never was in possession
of the petroleum.
It will, therefore, be observed that in this action both the
ownership and the possession of the petroleum in the said quarter section was
in issue. This is, therefore, an action for the recovery of land and is brought
within the period of ten years permitted by s. 18 of the said Statute of
Limitations.
The appeal should be dismissed with costs.
Rand J.:—This
appeal raises a question of importance under The Land Titles Act of
Alberta. In 1908 the Canadian Pacific Railway Company, being then the owner in
fee simple, executed a transfer of the northwest quarter of sec. 17, T. 50, R.
26, W. 4th M., to one Podgorny, excepting and reserving unto itself "all
coal and petroleum which may be found to exist within, upon or under the said
land". The duplicate of certificate of title No. 424 covering that quarter
section along with many other sections, for convenience in the land
transactions of the Company, was then being kept on deposit in the Land Titles
Office at Edmonton. The registration of the transfer resulted in the issue of a
new certificate and duplicate in the name of Podgorny, reserving to the.
Pacific Company "all coal on or under the said land". The new certificate
contained a reference to No. 424, and on the latter a memorandum signed by the
registrar was endorsed in these words:
This certificate of title is cancelled as to the northwest
quarter 17-50-26-W4th and a new certificate No. 182-N-8 issued this 13th of
July, 1908 to M. Podgorny.
[Page 451]
An identical memorandum was endorsed on the duplicate.
In 1910 Podgorny transferred the east half of the quarter
section to one Sitko. In 1911, the west half of the quarter section was
transferred to the respondent Anton Turta. In 1918 Sitko transferred the east
half of the quarter section to Turta. On the application for this registration,
Turta requested his titles to both halves of the quarter section be
consolidated into one. This was complied with and a certificate issued
accordingly. In all of these transfers and certificates coal was reserved to
the Pacific Company.
In 1910 certificate No. 424, because of the many
endorsements upon it, and with the consent of the Pacific Company, was
cancelled and a new certificate, as well as duplicate, issued covering the
lands which then remained uncancelled under No. 424. The new certificate did
not include the northwest quarter in question.
In January, 1943, in the course, apparently, of rectifying
errors in registrations, entries were made on the cancelled certificate No. 424
as well as on the duplicate by adding the words "except coal and
petroleum" to the memorandum of cancellation originally made, and by
adding the words "and petroleum" to the reservation in the certificate
of Anton Turta and in the duplicate which at the time was deposited in the Land
Titles Office because of an existing mortgage.
In 1944 the east half of the quarter section was transferred
by Anton Turta to the respondent Nick Turta and the west half to Metro and
Bessie Turta. The new certificates contain a reservation of coal and petroleum
to the Pacific Company, the form of which appears to have been obtained by the
solicitor acting for Anton Turta either from the previous certificate or
duplicate which had been changed as mentioned. In 1949 the reference in the
reservation to the Pacific Company was struck out of each certificate.
Subsequently the Pacific Company purported to give an option and later a lease
of petroleum rights over the quarter section to the appellant Imperial Oil
Company Limited.
The mechanics of registration can be shortly stated. When a
transfer is presented at the registry office it is immediately stamped and an
entry made in a daybook of the day, hour and minute of its receipt, thereafter
taken to be the time of registration. A memorandum is then
[Page 452]
endorsed on the certificate describing the interest conveyed
by the transfer and to that extent cancelling the certificate. By that entry
the transmission of title is effected. At the same time a like memorandum,
under the seal and signature of the registrar, is made on the duplicate which
is held by the owner and which must be presented to the registrar before a
transfer can be registered. The new certificate and duplicate are then prepared
and signed by the registrar, the former constituting a folio in the register
and the latter being delivered to the transferee or new owner.
Mr. Carson's contention is that the original error of the
registrar was a misdescription which, by the terms of s. 106 of The Land
Titles Act, can be asserted by the Pacific Company against any subsequent
purchaser. "Misdescription" as used in that section, so it is argued,
includes an error in copying into the certificate the language of a transfer
and remains a fatal defect in every title into which it may successively be
introduced.
The general and primary conception underlying the statute,
as it is of all legislation establishing what is known as the Torrens system of
land titles, is that the existing certificate, bearing the name of a real
person, is conclusive evidence of his title in favour of any person dealing
with him in good faith and for valuable consideration: Gibbs v. Messer
. The
preamble to The Territories Real Property Act, 1886 (Can.), c. 26 which
introduced the Torrens system to the western provinces indicates its objects:—
Whereas it is expedient to give certainty to the title to
estates in land in the Territories and to facilitate the proof thereof, and
also to render dealings with land more simple and less expensive:
This general principle is subject, of course, to certain
qualifications declared in the statute but that it expresses the broad purpose
of the system is unquestionable.
S. 106 is in these words:—
Nothing in this Act contained shall be so interpreted as to
leave subject to action for recovery of damages as aforesaid, or to action of
ejectment, or to deprivation of land in respect to which he is registered as
owner, any purchaser or mortgagee bona fide for valuable consideration
of land under this Act on the plea that his transferror or mortgagor has been
registered as owner through fraud or error, or has derived title from or
through a person registered as owner through fraud or error, except in the case
of misdescription, as mentioned in section one hundred and four.
[Page 453]
and s. 104:—
No action of ejectment or other action for the recovery of
any land for which a certificate of title has been granted shall lie or be
sustained against the owner, under this Act in respect thereof, except in any
of the following cases, that is to say:
* * *
(e) The case of a person deprived of or claiming any
land included in any grant or certificate of title of other land by
misdescription of such other land or of its boundaries, as against the owner of
such other land;
(f) The case of an owner claiming under an instrument
of title prior in date of registration under this Act, or under the provisions
of any law heretofore in force in any case in which two or more grants, or two
or more certificates of title, or a grant and certificate of title, are
registered under this Act or under any such law in respect to the same land.
What, then, is the scope of "misdescription"
within para. (e)? I have considerable doubt that the omission from the
certificate of the reservation of petroleum can be taken to be a misdescription
at all. The registrar's function is not to describe, it is to transcribe or
copy what appears on the transfer, and it is on the latter that description,
properly so called, appears. The same can be said of an endorsement of a
memorandum on the certificate; there are cases in which it would contain a
description taken from the transfer. Nor is the word ordinarily applicable to
the specification of the content of interests in land as distinguished from the
definition of its superficial boundaries. In relation, then, to both the
certificate and memorandum the word can be satisfied without extending its
meaning to an error or omission such as we have here. But as a different view
is taken by other members of the Court, I will assume that we have before us a
true case of misdescription and on that footing examine the issue presented.
The argument made involves this, that a person contemplating
a purchase of land included in a certificate must not only examine that
certificate and make a proper search for the interests to which, by the
statute, it is declared to be subject, but must also examine every transfer
back to the original grant from the Crown for errors in transcription into the
successive certificates. The legislation was designed, obviously, to avoid just
such inconvenience and risk, and such a requirement would completely reverse
the opinion on which, since its introduction in 1886, conveyancing in the
western provinces has proceeded.
[Page 454]
Ss. 105 and 108 throw some light on the question:—
105. After a certificate of title has been granted therefor
any person deprived of any land in consequence of fraud or by the registration
of any other person as owner of such land, or in consequence of any fraud,
error, omission or misdescription in any certificate of title, or in any
memorandum thereon or upon the duplicate thereof, …
Provided always that except in the case of fraud or error
occasioned by any omission, misrepresentation, or misdescription in the
application of such person to be registered as owner of such land, or in any
instrument executed by him, such person shall, upon a transfer of such land bona
fide for value, cease to be liable for the payment of any damages …
108. Any person sustaining loss or damage through any
omission, mistake or misfeasance of the inspector of land titles officers, or a
registrar, or any of his officers or clerks, … and any person deprived of any
land by the registration of any other person as owner thereof or by any error,
omission or misdescription in any certificate of title or in any memorandum
upon the same or upon the duplicate certificate thereof, and who, by the
provisions of this Act, is barred from bringing an action of ejectment or other
action for the recovery of the land, may … bring an action …
The former section covers cases of "fraud, error,
omission or misdescription" in either the transfer, the new certificate or
a memorandum made on the existing certificate. The section expressly
contemplates the case of a person deprived of land in consequence of misdescription,
and provision is made for the recovery of damages therefor. S. 108 in which the
"error, omission or misdescription" arising in the office of the
registrar may be in any certificate or memorandum, likewise includes a
misdescription which results in the deprivation of an owner. S. 104(e),
on the contrary, is directed to cases of misdescription in which an owner is
not barred from recovering the land but is limited to those in which his land
is included in a certificate of "other land by misdescription of such other
land or its boundaries".
By these sections two kinds of misdescription are thus
recognized, one which bars the original owner and gives him a right to damages,
and the other which leaves his right unaffected even against a bona fide
purchaser. The word "deprived" in para. (e) cannot be taken in
an absolute sense as it would then contradict the effect of the exception; and
the rights against individuals and ultimately against the assurance fund given
by ss. 105 and 108 are not elective alternatives to a recovery of the land
under the exceptions to 104; they assume that that recovery is foreclosed.
[Page 455]
Again, neither in the Territories Real Property Act
(supra) nor in its successor, c. 28, S. of C., 1894, nor in c. 24 of the
statutes of Alberta, 1906, was there any obligation on the holder of a grant
made prior to January 1st, 1887 to bring his land under the system, and in considering
the scope of s. 104(e) that situation must be kept in mind. In the case
of adjoining land not under the system, the application of the section presents
no difficulty. A case would seem to arise also where both parcels are within
the statute and the certificate contains an identification of the land followed
by misdescription discoverable by reference to the land. And there is finally
its application to the certificate in which the misdescription first appears;
between transferor and transferee any errors can be corrected.
These considerations are fortified by the fact that the
duplicate is intended to furnish the owner with a current record of his title
and no transfer can be registered without its delivery for appropriate
cancellation. If, in this case, the duplicate had been examined by the Pacific
Company, the errors would have been apparent as the scheme of the statute
contemplated. The existence of such a protection to the owner is almost
conclusive that the provisions of the Act preserving rights against a bona fide
purchaser do not extend to a misdescription concealed from him but exposed to
the original transferor.
The second contention is that the case comes within para. (f)
of s. 104 and that the Pacific Company holds a certificate of the petroleum
prior in date to that of the respondent Anton Turta. This assumes the
cancellation endorsed on certificate No. 424 to have been ineffectual as to the
petroleum since it was not authorized by the language of the transfer. But the
provisions already quoted make it clear that the omission from the memorandum
of cancellation and the new certificate cannot prevail against a subsequent
purchaser. That the registrar makes an error is not to the purpose: the statute
provides for such occurrences; and it also provides protection against such an
error of which the Pacific Company did not avail itself. It is not, then, a
case of two competing certificates, whether or not that means certificates in
two chains beyond the root title;
[Page 456]
there is only one certificate, that issued to Anton Turta,
with interests derived through him to the remaining respondents.
The purported corrections made in 1943 by the registrar
were, in my opinion, of no effect. Whatever his powers under s. 104 or 160(2)
may be, they do not extend to what was then attempted. The language of 160(2),
"so far as is practicable without prejudicing rights conferred for
value"; means no more than that the rights conferred for value are not in
any event to be invaded but that the authorized action of the registrar may end
before that point is reached. There was such value given here for rights which
the alterations could not prejudice.
It was urged by Mr. Nolan that as Anton Turta had purchased
the land for farming purposes only he could not be said to be a purchaser for
value of the petroleum rights, and Pleasance v. Allen was cited as an authority against
him. In that case there was a succession of sales of an intended parcel of land
containing two buildings under a description which encroached 5½ inches on an
adjoining building and the existing certificate was amended. This was on the
ground of the common mistake in each sale. But there is nothing of that nature
here: Podgorny was to convey to Turta every interest in the land then appearing
in his certificate, not everything he might have been entitled to if his
certificate had been challenged. I assume that neither man had the particular
rights in mind at the time of the sale; but if the courts were to be at liberty
to embark upon enquiries into what was then the active thoughts of the parties,
no title would be secure.
The remaining question is whether the action is barred by the
Limitation of Actions Act, c. 133, R.S.A. 1942. On the view which I have
taken that the petroleum rights were acquired by Turta and the Pacific Company
deprived of them, the possession, in the absence of physical workings and so
far as such incorporeal rights can be the subject of possession, must be taken
to be an incident of ownership. In the circumstances there has been no legal or
physical disturbance of that possession; at the most, certain entries have been
made on the certificate claiming rights which do
[Page 457]
not exist. The action is not, then, one to recover the land
but to have those entries expunged and for a declaration of the plaintiff's
interest. Since there has been no trespass and since the steps taken have, at
the most, raised only a cloud upon the title, the question is whether an owner
can be deprived of his land by the mere assertion on the register of unfounded
claims. I know of no provision of law which, by the passage of time, raises any
right based on that mode of protesting an interest; it would be a novel form of
prescription which the law does not recognize. Its true interpretation is that
of a continuing assertion against which proceedings of the nature here can be
taken at any time, and no question of limitation arises.
I would therefore dismiss the appeals with costs.
Kellock J.:—According
to the transfer of June 19, 1908, the railway company conveyed to Podgorny all
the estate and interest of the former in the parcel, excepting and reserving to
the railway company, its successors and assigns, "all coal and petroleum
which may be found to exist within, upon, or under the said land". This
transfer was, according to s. 22 of the statute, to be deemed registered as
soon as a memorandum of it had been entered upon the folio in the register
constituted by certificate of title No. 424 held by the railway. By s. 2(n)
"memorandum" is defined to mean "the particulars of any
instrument presented for registration".
According to s. 24, the memorandum was required to state
"the nature" of the transfer to which it relates and by s. 25, a like
memorandum was required to be made upon the duplicate certificate. S. 25 goes
on to provide that the memorandum upon the duplicate shall be received in all
courts of law as "conclusive evidence" of its contents and that the
instrument of which it is a memorandum has been "duly registered under the
provisions of this Act".
S. 135 provides that no person proposing to take a transfer
from the holder of a certificate of title is "concerned to inquire"
into the circumstances in which such owner or any previous owner was
registered. One of such "circumstances" would undoubtedly be the
actual contents of the transfer giving rise to any particular memorandum
[Page 458]
endorsed on the certificate of title. Moreover, a transfer
forms no part of the register, although the registrar is required by s. 51 to
retain it in his office.
It is provided by s. 114(1) that the registrar, on
discovering that any duplicate certificate has been issued or any memorandum
made in error, may require the holder to produce the same for correction and,
in case of refusal, to bring such person before a judge to show cause why such
correction should not be made. It is made plain by s-s (2), as added in 1911-12
by c. 4, s. 15 (23), however, that this power may be exercised only where
rights conferred for value will not be prejudiced. Accordingly, once Podgorny
had conveyed for value, any right of correction on the part of the registrar was
gone. I do not consider it necessary, therefore, to refer further to the
"corrections" which were attempted to be made to the various
instruments. It would, in any event, seem to be a fatal objection to the
validity of such corrections that they were not in fact made by the registrar
but by some person or persons employed in the Land Titles Office; s. 2(p).
The appellants contend, however, that they are entitled to
rely upon clauses (e) and (f) of s. 104, the former relating to
"misdescription", the latter to conflicting instruments.
In my view no reliance can be placed, in the present case,
upon the provisions of clause (f), as I think it clear that in order to
come within the language "the case of an owner claiming under an
instrument of title" with which the clause begins, it is necessary for
such a person to be the holder of a subsisting instrument of title, not one
which has been cancelled. On the evidence in the case at bar, which is made
conclusive by the statute, certificate 424 was cancelled and the appellants
therefore cannot satisfy the language of the clause.
This view is, in my opinion, supported by the provisions of
ss. 42 and 44. The exception provided for in each is that of an owner claiming
"the same land under a prior certificate". This language clearly
contemplates that the claimant is himself either the original grantee of the
prior certificate of title or holds a subsisting instrument of title derived
through the former.
[Page 459]
With respect to "misdescription", clause (e)
of s. 104(1) is as follows:
The case of a person deprived of or claiming any land
included in any grant or certificate of title of other land by misdescription
of such other land or of its boundaries, as against the owner of such other
land;
An owner of land making application to bring it under The
Land Titles Act, (s. 27), might include in the description of the land,
other land belonging to another person which had not been brought under the
statute. On receiving a certificate for his own as well as such other land, such
certificate holder would be in a position to deal with it in favour of others,
'thus depriving the original owner of the land by "misdescription".
The language of clause (e), taken alone, may, on its
face, be capable of extension to circumstances such as exist in the case at
bar, namely, that an interest in the land expressly reserved by the transferor
in the transfer, is included by error on the part of the registrar in the
certificate issued to the transferee, the endorsement upon the certificate and
duplicate certificate of the transferor each containing the same error.
However, if the language of the clause be extended to such a case, it would
seem from s. 106 that no matter how long the chain of transfers from the
original transferee, all such persons are liable to attack. Such a construction
would run counter to the scheme exemplified by s. 135, that a person dealing
with a registered owner is not concerned with anything other than what is
disclosed by a registered certificate. In my opinion, "misdescription"
of such a character is not within s. 104(1) (e). It is made plain by
other provisions that the statute contemplates more than one type of
misdescription.
It is provided by s. 105 that after a certificate of title
has been granted "therefor", any person deprived of any land.
(a) in consequence of any fraud, or
(b) by the registration of any other person as
owner, or
(c) in consequence of any fraud, error, omission or
"misdescription" in any certificate of title or in any memorandum
thereon or upon the duplicate thereof,
may bring an action for the recovery of damages against
the person upon whose application the erroneous application was made or who
acquired title to the land in question through such fraud, error, omission or
misdescription.
[Page 460]
Under the proviso to the section, however, upon a transfer
of the land bona fide for value "such person" ceases to be liable for
the payment of any damages except in the case of fraud or error occasioned by
any omission, misrepresentation, or misdescription in the application of such
person to be registered as owner of such land, or in any instrument executed by
him.
The proviso proceeds on the assumption that a bona fide
purchaser of the land, whose title thereto arose "in consequence of …
misdescription" in any "certificate of title" or in "any
memorandum" thereon or upon any duplicate, is protected. It is for this
reason that the former owner "deprived" of the land, is given his
remedy in damages. The only possible way of reconciling ss. 105 and 106,
therefore, is on the footing that there is a type of "misdescription"
covered by the former section other than that described in s. 104(1) (e),
as to which latter type a transferee for value without notice, however long the
chain of title through which he claims, would appear by the provisions of s.
106 of the statute, never to be protected.
Moreover, it is in the contemplation of s. 108 that a person
deprived of land by "misdescription in any certificate of title or in any
memorandum upon the same or upon the duplicate certificate of title
thereof" may be barred from bringing an action of ejectment for the
recovery of land. This provision is only to be reconciled with s. 106 upon a
similar basis.
In my view, the "misdescription" (if that be the
correct term) of which the appellants complain, arising as it did from an error
on the part of the registrar, is not of the character dealt with by s. 104(1) (e).
Accordingly, in the language of s-s (2) of that section, the certificate of
title held by Turta is "an absolute bar and estoppel" to any such
action as is here in question.
I would therefore dismiss the appeal with costs.
Locke J.:—(dissenting)
The Canadian Pacific Railway Company (hereinafter referred to as the C.P.R.)
became the owner of the North West quarter of Section 17, Township 50, Range
26, west of the 4th Meridian, under a grant by letters patent from the Crown in
the right of Canada dated July 13, 1901. In accordance with the provisions of
[Page 461]
The Land Titles Act of 1894, this patent was filed in
the North Alberta Land Registration District and a certificate of title No. 424
issued on March 9, 1903, in the Company's name certifying that it was the owner
of an estate in fee simple in the said land and other named parcels.
Upon the constitution of the Province of Alberta in 1905,
the Legislature enacted The Land Titles Act as c. 24 of the Statutes of
1906 which substantially re-enacted the provisions of the Dominion Statute of
1894.
The transfer from the C.P.R. to Mike Podgorny dated June 19,
1908, is in the form prescribed by The Land Titles Act and was a
transfer of the land reserving "all coal and petroleum which may be found
to exist within, upon or under the said land". The certificate of title
dated July 13, 1908, issued to Podgorny, through an error made in the office of
the Registrar reserved only "all coal on or under the said land". At
the same time, the certificate of title of the C.P.R. was endorsed with a
memorandum that it had been cancelled as to the land in question.
The respondent, Anton Turta, purchased eighty acres of the
quarter section in question from Podgorny and the other half from one Sitko (to
whom a certificate of title had issued) for valuable consideration: the land
was transferred to him in accordance with the requirements of The Land
Titles Act and certificates of title were issued in his name declaring that
he was the owner in fee simple of the land reserving unto the C.P.R. all coal
on or under it.
It is not suggested that Anton Turta was aware of the error
that had been made in the Registrar's office, nor is it sought to impeach the
certificate of title which was issued to him on the ground that he was not a
bona fide purchaser for value of these lands. The claim advanced on behalf of
the C.P.R. is made possible only by the fact that The Land Titles Act of
Alberta and its predecessors, The Land Titles Act of 1894 and the Territories
Real Property Act (c. 26, S.C. 1886), differed in a material particular
from the Manitoba Real Property Act of 1885, from which most of its terms were
taken. The claim of the appellants is that even as against a purchaser for
value without notice holding a certificate of title in his name under The
Land Titles Act, the title declared by it may be impeached if, by
[Page 462]
misdescription of the land or its boundaries, it includes
lands which are the property of the claimant. As petroleum is admittedly a
mineral and as under the definition of land contained in The Land Titles Act
it includes minerals, the appellants say that the lands transferred to
Podgorny and subsequently to Anton Turta which, as described, included all
minerals other than coal, thus included by misdescription the petroleum which
remained the property of the C.P.R.
Before considering the language of the various sections, it
should be said that the statement made by Lord Watson in delivering the
judgment of the Judicial Committee in Gibbs v. Messer , cannot be accepted without
qualification in considering this matter, owing to a material difference
between The Land Titles Act of Alberta and the Transfer of Land
Statute of Victoria of 1866 considered in Gibbs' case.
The passage from that judgment, referred to by the late Mr.
Justice Parlee in delivering the judgment of the majority of the Appellate
Division in the present case, reads:—
The main object of the Act, and the legislative scheme for
the attainment of that object, appear to them to be equally plain. The object
is to save persons dealing with registered proprietors from the trouble and
expense of going behind the register, in order to investigate the history of
their author's title, and to satisfy themselves of its validity. That end is
accomplished by providing that every one who purchases, in bonâ fide and for
value, from a registered proprietor, and enters his deed of transfer or
mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding
the infirmity of his author's title.
The section of the Transfer of Lands Statute of 1866
is not quoted either in the judgment of the Judicial Committee or in the report
of the trial or of the hearing before the full court of Victoria where the case
is reported as Messer v. Gibbs . The
point in Gibbs' case was not, however, a matter of misdescription. The
Act of 1866 is not available to me but the Transfer of Land Act, 1890 of
Victoria which repealed the earlier statute re-enacted as s. 74, s. 49 of the
earlier Act. It is this section which declares the indefeasible nature of the
title of those holding
[Page 463]
land under the Act, subject to certain exceptions. One of
these is fraud. The relevant language of the section for the present
consideration reads:—
but absolutely free from all other encumbrances whatsoever,
except the estate or interest of a proprietor claiming the same land under a
prior registered grant or certificate of title, and except as regards any
portion of land that may by wrong description of parcels or boundaries be
included in the grant certificate of title or instrument evidencing the title of
such proprietor not being a purchaser for valuable consideration or deriving
from or through such a purchaser.
The Real Property Act of 1885 of the Province of
Manitoba introduced for the first time the Torrens system into Canada. Section
62 of that Act which declared the indefeasible nature of the title of the
holder of a certificate of title, in so far as it dealt with misdescription,
followed the Victoria statute and read:—
subject to the exceptions and reservations mentioned in
section 61, except as far as regards any portion of land that may by wrong
description of boundaries or parcels be included in such certificate when
the holder of such certificate is neither a purchaser or mortgagee for value,
nor the transferee of a purchaser or mortgagee for value.
The Dominion Act which introduced the Torrens system into
the North West Territories, being the Territories Real Property Act of
1886 (c. 26) was taken, in a large part verbatim, from the Manitoba Act.
However, in this respect there was an alteration. Section 62 of the Dominion
Act was copied from that section in the Manitoba Act but the reference to
misdescription omitted the words above underlined. Section 44 of The Land
Titles Act of Alberta of 1906 is the counterpart of s. 62 and does not
contain the words protecting the rights of purchasers for value and those who
purchased from them, contained both in the Manitoba and the Victorian sections.
In Union Bank of Canada v. Boulter Waugh Ltd. in which certain of the provisions of
The Land Titles Act of Saskatchewan of 1917 were considered by this
court, Sir Louis Davies C.J. said in part (p. 387):—
I think the object and purpose of such statutes as the one
here was very well stated by Edwards J. in delivering the judgment of the Court
of Appeal in New Zealand in Fels v. Knowles, :
"The object of the Act was to contain within its four
corners a complete system which any intelligent man could understand, and which
could be carried into effect in practice without the intervention of persons
skilled in the law … The cardinal principle of the statute is that the register
is
[Page 464]
everything and that, except in cases of actual fraud on the
part of the person dealing with the registered proprietor, such person, upon
registration of the title under which he takes from the registered proprietor,
has an indefeasible title against all the world. Nothing can be registered the
registration of which is not expressly authorized by the statute. Everything
which can be registered gives, in the absence of fraud, an indefeasible title
to the estate or interest, or in the cases in which registration of a right is
authorized, as in the case of easements or incorporeal rights, to the right
registered."
The Saskatchewan statute under consideration in that case
differed from the Manitoba Act in the same respect as does the present Alberta
Act in dealing with the matter of misdescription. The Boulter Waugh case
was not concerned with any question of misdescription in a certificate of
title, however, and the question raised in the present case was accordingly not
argued. The approval by Sir Louis Davies of the statement that the cardinal
principle of the statute is that the register is everything cannot be accepted
without reservation in relation to the present question, however accurate it
may have been in regard to the New Zealand statute and as it would have been
had it referred to the Real Property Act of Manitoba.
The following additional facts are to be considered in the
present matter. On September 2, 1910, the Registrar issued to the C.P.R.
certificate of title No. 2687 to replace the certificate No. 424 which had been
issued on March 9, 1903, and for convenience left in the Land Titles Office.
The new certificate contained no reference to the lands which had been sold to
Podgorny and there was endorsed upon the earlier certificate a memorandum that
it was cancelled in full and a new certificate issued. The only reason for the
issue of the new certificate was that the earlier one was so covered with
memoranda of transfers and other instruments that there was insufficient room
for further similar endorsements. There is no evidence that the C.P.R.
requested the issue of the new certificate or that the company took delivery of
it, though the evidence of Mr. Kinnaird, a former Deputy Registrar in the Edmonton
Land Titles Office, is to the effect that the practice would be to notify the
owner when this was done. Presumbaly, though the evidence is silent on the
point, the new certificate was left in the registrar's office for the same
purpose as the earlier certificate. On January 16, 1943, Mr. H. T. Logan, a
lawyer
[Page 465]
employed in the Land Titles Office apparently for the
purpose of checking the titles to minerals in the district, altered the
certificates of title which had been issued to Anton ' Turta by adding after
the description which reserved the coal unto the C.P.R. the words "and
petroleum." At the same time, apparently under Mr. Logan's direction, the
endorsement of the partial cancellation of certificate No. 424 on the transfer
to Podgorny was amended by writing in after the description of the land the
words "ex. coal and pet." In addition, the certificate which had been
issued to Podgorny on July 13, 1908, was amended by adding the words "and
petroleum" to the reservation and similar changes were made in the
certificates of title which had been issued after the transfer by the C.P.R. to
Podgorny and before the issue of the certificate of title to Anton Turta. When
the latter transferred the lands to his children, the transfer reserved to the
C.P.R. all coal and petroleum in conformity with his certificate of title, as
altered. These latter transfers were made in the year 1944. Neither the C.P.R.
nor Anton Turta were aware of the action taken in the Registrar's office of
amending these various certificates. There was, in my opinion, no power in
Logan under the Act either to make or direct the making of these alterations
and the rights of the parties' are, therefore, unaffected by them.
In my judgment, the alterations made in The Land Titles
Act of 1906 by later amendments and the differences which exist between
that Act and the Act as it appears as c. 205, R.S.A. 1942, do not affect any
question to be decided. I, therefore, propose to quote the Act of 1906 which
was in effect at the time of the transfer by the C.P.R. to Podgorny and when
Turta obtained title. After the number of each section, the number of its
counterpart in the Revised Statutes of 1942 appears for the sake of
convenience.
The sections of the Act to be considered in deciding the
legal effect of the cancellation of certificate of title No. 424, the error
made in issuing Podgorny's certificate of title omitting the reservation of the
petroleum and of Anton Turta's purchase of the property for value and obtaining
a certificate without knowledge of any infirmity in the title of his
transferrors if any such existed, are as follows:—
[Page 466]
22. (24) Every grant shall be deemed and taken to be
registered under the provisions and for the purposes of this Act so soon as the
same has been marked by the registrar with the folio and volume on and in which
it is embodied in the register, and every other instrument shall be deemed to
be registered as soon as a memorandum of it has been entered in the register
upon the folio constituted by the existing grant or certificate of title of
such land.
25. (27) Whenever a memorandum has been entered in the
register the registrar shall make a like memorandum upon the duplicate when the
same is presented to him for the purpose, and the registrar shall sign and seal
such memorandum, which shall be received in all courts of law as conclusive
evidence of its contents and that the instrument of which it is a memorandum
has been duly registered under the provisions of this Act.
39. (49) Every certificate of title shall be made on a
separate folio of the register, and upon every transfer of ownership the
certificate of title of the transferror and the duplicate thereof shall be
cancelled and the certificate of title of the transferee shall thereupon be
entered upon a new folio in the register; and the registrar shall note upon the
folio of the title of the transferror the number of the folio of the
transferee's title and upon that of the transferee the number of the folio of
the transferror so that reference can be readily made from one to the other as
occasion requires.
42. (60) The owner of land for which a certificate of title
has been granted shall hold the same subject (in addition to the incidents
implied by virtue of this Act) to such encumbrances, liens, estates or
interests as are notified on the folio of the register which constitutes the
certificate of title absolutely free from all other encumbrances, liens,
estates or interests whatsoever, except in case of fraud wherein he has
participated or colluded and except the estate or interest of an owner claiming
the same land under a prior certificate of title granted under the provisions
of this Act or granted under any law heretofore in force relating to title to
real property.
(2) Such priority shall, in favour of any person in
possession of land, be computed with reference to the grant or earliest
certificate of title under which he or any person through whom he derives title
has held such possession.
43. (61) The land mentioned any certificate of title granted
under this Act shall by implication and without any special mention therein,
unless the contrary is expressly declared, be subject to—
(a) Any subsisting reservations or exceptions
contained in the original grant of the land from the Crown ;
(b) All unpaid taxes;
(c) Any public highway or right of way or other
public easement, howsoever created upon, over or in respect of the land;
(d) Any subsisting lease or agreement for a
lease for a period not exceeding three years, where there is actual occupation
of the land Under the same ;
(e) Any decrees, orders or executions against or
affecting the interest of the owner of the land which have been registered and
maintained in force against the owner;
(f) Any right of expropriation which may by statute
or ordinance be vested in any person, body corporate, or His Majesty;
(g) Any right of way or other easement granted
or acquired under the provisions of any Act or law in force in the Province.
[Page 467]
44. (62) Every certificate of title granted under this Act
shall (except in case of fraud wherein the owner has participated or colluded)
so long as the same remains in force and uncancelled under this Act fee
conclusive evidence in all courts as against His Majesty and all persons
whomsoever that the person named therein is entitled to the land included in
the same, for the estate or interest therein specified, subject to the
exceptions and reservations mentioned in the next preceding section, except so
far as regards any portion of land by wrong description of boundaries or
parcels included in such certificate of title and except as against any person
claiming under a prior certificate of title granted under this Act or granted
under any law heretofore in force relating to titles to real property in
respect of the same land; and for the purpose of this section that person shall
be deemed to claim under a prior certificate of title who is holder of or whose
claim is derived directly or indirectly from the person who was the holder of
the earliest certificate of title granted, notwithstanding that such
certificate of title has been surrendered and a new certificate of title has
been granted upon any transfer or other instrument.
50. (69) If a transfer purports to transfer the
transferror's interest in the whole or part of the land mentioned in any
certificate of title, the transferror shall deliver up the duplicate
certificate of title of the land and the registrar shall make a memorandum
thereon and upon the certificate of title in the register cancelling the same,
either wholly or partially, according as the transfer purports to transfer the
whole or part only of the interest of the transferror in the said land, and
setting forth the particulars of the transfer.
51. (71) The registrar, upon cancelling any certificate of
title either wholly or partially, pursuant to any transfer, shall grant to the
transferee a certificate of title of the land mentioned in the transfer and
issue to the transferee a duplicate thereof; and the registrar shall retain
every transfer and cancelled duplicate certificate of title; but in the case of
a partially cancelled certificate of title the registrar shall return the duplicate
to the transferror after the memorandum partially cancelling the same has been
made thereon and upon the certificate of title in the register; or may whenever
required thereto by the owner of an unsold portion of land in any partially
cancelled certificate of title, or where such a course appears to the registrar
more expedient, grant to such owner a certificate of title for such portion of
which he is the owner, upon the delivery of the partially cancelled duplicate
certificate of title to the registrar to be cancelled and retained.
76. (121) Any person registered in place of a deceased owner
shall hold the land in respect of which he is registered upon the trusts and
for the purposes to which the same is applicable by this Act or by law, and
subject to any trusts and equities upon which the deceased owner held the same;
but for the purpose of any registered dealings with such land he shall be
deemed to be the absolute and beneficial owner thereof.
2. Any person beneficially interested in any such land may
apply to a court or judge having jurisdiction to have the same taken out of the
hands of the trustee having charge by law of such land and transferred to some
other person or persons; and the court or judge, upon reasonable cause being
shown, shall name some suitable person or persons as owner of the land; and
upon the person or persons so named accepting the ownership and giving approved
security for the due fulfilment of the trusts, the court or a judge may order
the registrar to cancel the certificate of title to the trustee, and to grant a
new certificate of title to the person or persons so named.
[Page 468]
3. The registrar, upon the production of the order, shall
cancel the certificate of title to the trustee after making thereon and upon
the duplicate thereof a memorandum of the appointment by order of the court or
judge of such person or persons as owners, and shall grant a new certificate of
title to such new trustee and issue to him a duplicate certificate of title.
104. (171) No action of ejectment or other action for the
recovery of any land for which a certificate of title has been granted shall
lie or be sustained against the owner, under this Act in respect thereof,
except in any of the following cases, that is to say:—
* * *
(d) The case of a person deprived of any land
by fraud as against the owner of such land through fraud, or as against a
person deriving title otherwise than as a transferee bona fide for value, from
or through such owner through fraud;
(e) The case of a person deprived of or claiming any
land included in any grant or certificate of title of other land by
misdescription of such other land or of its boundaries, as against the owner of
such other land.
106. (159) Nothing in this Act contained shall be so
interpreted as to leave subject to action for recovery of damages as aforesaid,
or to action of ejectment, or to deprivation of land in respect to which he is
registered as owner, any purchaser or mortgagee bona fide for valuable
consideration of land under this Act on the plea that his transferror or
mortgagor has been registered as owner through fraud or error or has derived
title from or through a person registered as owner through fraud or error, except
in the case of misdescription, as mentioned in section one hundred and four.
108. (157) Any person sustaining loss or damage through any
omission, mistake or misfeasance of the inspector of land titles offices, or a
registrar, or any of his officers or clerks, in the execution of their
respective duties under the provisions of this Act, and any person deprived of
any land by the registration of any other person as owner thereof or by any
error, omission or misdescription in any certificate of title or in any
memorandum upon the same or upon the duplicate certificate thereof, and who, by
the provisions of this Act, is barred from bringing an action of ejectment or
other action for the recovery of the land, may in any case in which remedy by
action for recovery of damages hereinbefore provided is barred, bring an action
against the registrar as nominal defendant, for recovery of damages; and if the
plaintiff recovers final judgment against such nominal defendant the judge
before whom such action is tried shall certify to the fact of such judgment and
the amount of the damages and costs recovered and the Provincial Treasurer
shall pay the amount thereof to the person entitled on production of an
exemplification or certified copy of the judgment rendered and shall charge the
same to the account of the said assurance fund:
Provided always that notice in writing of every such action,
and the cause thereof, shall be served upon the Attorney General, and also upon
the registrar, at least three calendar months before the commencement of such
action.
121. (169) The Assurance Fund shall not under any
circumstances be liable for compensation for any loss, damage or deprivation
occasioned by the breach by any owner of any trust, whether expressed, implied
or constructive; nor in any case in which the same land has been included in
two or more grants from the Crown; nor shall the Assurance Fund be liable in
any case in which loss, damage or deprivation has been occasioned by any land
being included in the same certificate of title with
[Page 469]
other land, through misdescription of the boundaries or
parcels of any land, unless in the case last aforesaid it is proved that the
person liable for compensation and damages is dead or has absconded from the
Province or has been adjudged insolvent, or the sheriff has certified that he
is not able to realize the full amount and costs awarded in any action for such
compensation; and the said fund shall be liable for such amounts only as the
sheriff fails to recover from the person liable as aforesaid.
135. (189) Except in the case of fraud, no person,
contracting or dealing with or taking or proposing to take a transfer,
mortgage, encumbrance or lease, from the owner of any land for which a
certificate of title has been granted shall be bound or concerned to inquire
into or ascertain the circumstances in or the consideration for which the owner
or any previous owner of the land is or was registered or to see to the
application of the purchase money or of any part thereof, nor shall he be
affected by notice direct, implied or constructive, of any trust or
unregistered interest in the land, any rule of law or equity to the contrary
notwithstanding; and the knowledge that any trust or unregistered interest is
in existence shall not of itself be imputed as fraud.
It is contended by the appellant that the partial
cancellation of certificate of title 424 without reserving the coal and
petroleum and the purported cancellation of the entire certificate, at the time
certificate 2687 was issued on September 2, 1910, were nullities and that,
accordingly, certificates 424 should be deemed as still in effect, in so far as
the coal and petroleum in the quarter section is concerned.
As will be seen, the transfer required by the Act is deemed
to be registered as soon as a memorandum of it has been entered upon the folio
constituted by the existing certificate of title of such land. Section 25
requires the registrar to make a like memorandum upon the duplicate. In this
case, the memorandum made stated that the title to the quarter section had been
transferred without any reservations while the instrument, the registration of
which it evidenced, reserved the coal and petroleum.
Section 50 requires the registrar to cancel the certificate
of title partially if the transfer purports to transfer only part of the
interest of the transferror in the land and section 51 authorizes the
registrar, if requested, to grant a new certificate of such portion of the land
as is retained by the transferror.
I find nothing in these sections or elsewhere in the Act
vesting in the registrar any authority to cancel a certificate of title in
toto, except upon the presentation of a transfer executed in accordance
with the Act conveying the entire
[Page 470]
interest of the registered owner. Both the endorsements
placed upon certificate of title No. 424 and upon the duplicate certificate
were made without authority and the act of issuing to Podgorny a certificate of
title for the quarter section, reserving only coal but omitting the reservation
of the petroleum, was also unauthorized.
It is, however, in the view that I take of this matter
unnecessary to decide whether these unauthorized acts were of no effect, as
were the unauthorized acts of Logan and those acting under his direction. It is
sufficient for the purpose of this appeal to say that, in any event, the title
of the C.P.R. to the petroleum was not thereby extinguished. Whether the legal
effect of it, however, is to prevent the owner from asserting his rights
against third parties is another question.
It is not an answer to the appellant's claim to say, in the
words of Edwards J. in Fels' case, that the register is everything. That
statement can be made with justification, in my opinion, in regard to the Real
Property Act of Manitoba but the statutes are in this respect quite
different.
Section 44 which declares the certificate of title to be conclusive
evidence of the title of the owner, subject to the reservations in s. 43,
provides two further exceptions:—
except so far as regards any portion of land by wrong
description of boundaries or parcels included in such certificate of title and
except as against any person claiming under a prior certificate of title
granted under this Act or granted under any law heretofore in force relating to
titles to real property in respect of the same land;
The concluding words of this section clearly bring within
the exception the rights of those claiming under a prior certificate of title,
even though it has been surrendered and a new certificate granted. I have
pointed out above the difference between this section and s. 62 of the Real
Property Act of Manitoba of 1885.
Section 104 (d) of the Alberta Act protects
the rights of a bona fide transferee for value against the claim of a person
deprived of his land by fraud in which the transferee has not participated, in
this respect being in the same language as the Manitoba section. Clause (e)
of s. 104, however (which was s. 103 (e) of the Territories Real
[Page 471]
Property Act) as in the case of s. 44 contains
no such protection. The concluding words of s-s. (5) of s. 116 of the Manitoba
Act were :—
not being a transferee of such other land or deriving from
or through a transferee thereof bona fide for value.
These words were omitted in s. 103 of the Territories
Real Property Act and s. 44 of the 1906 Act.
It is to be noted in passing that ss. 105 and 107 of the Act
of 1906 do not appear in the revision of 1942. In the revision of 1922 (c. 133)
these sections appeared as s. 149 and 151 and both were repealed by s. 11 of c.
15 of the Statutes of 1935. The subject matter of the sections is dealt with in
s. 157 of the 1942 revision and contains the provision that any person
suffering loss or damage by the registration of another person as owner by misdescription
in a certificate of title and who, by the provisions of the Act, is barred from
bringing an action for the recovery of the land may sue the Registrar to
recover damages.
The difference between the Alberta Act and that of Manitoba
is again made clear in s. 106. The Alberta section, as will be seen, says that
nothing in the Act shall be interpreted as to leave subject to an action for
damages or deprivation of land any bona fide purchaser for valuable
consideration on the claim that his transferror has been registered as owner
through fraud or error, except in the case of misdescription as mentioned in
s. 104. The section of the Territories Real Property Act which is
reproduced in s. 106 was taken from s. 118 of the Manitoba Act of 1885, which
declared the immunity from action of bona fide purchasers whose title was
sought to be impeached by reason of fraud on the part of a predecessor in
title, but also of such a purchaser against any claim:—
whether such fraud or error shall consist in wrong description
of the boundaries or of the parcels of any land or otherwise howsoever.
The subject of misdescription is also dealt with in ss. 108
and 121. It will be seen that the language of the exception with which we are
concerned in s. 44 is:—
except so far as regards any portion of land by wrong
description of boundaries or parcels included in such certificate of title.
[Page 472]
The wording of clause (e) of s. 104 saves the
rights of a person:—
deprived of or claiming any land included in any grant or
certificate of title of other land by misdescription of such other land or of
its boundaries.
The misdescription referred to in s. 106 is that referred to
in s. 104(e). In s. 108 the language is:—
by any error, omission or misdescription in any certificate
of title or in any memorandum upon the same or upon the duplicate certificate
thereof.
Section 121 which declares the immunity of the Assurance
Fund in certain circumstances refers to a case in which damage or deprivation
has been occasioned:—
by any land being included in the same certificate of title
with other land, through misdescription of the boundaries or parcels of any
land.
These sections are to be read together. The duty of the
registrar and the only steps authorized by the statute upon the presentation of
the transfer from the C.P.R. to Podgorny was to place the memorandum on the
original and duplicate certificate of title and to issue a new certificate of
title describing the interest conveyed in that transfer. The certificate of
title issued purported to state the nature of that interest but described it as
being the land reserving only the coal, whereas the interest conveyed reserved
also the mineral petroleum. In my opinion, this was a misdescription of the
parcel conveyed. To restrict the meaning of the expression "boundaries or
parcels" to the boundaries as defined by a reference to a survey, or
simply as a particular quarter section, or to the limits of the property as
defined in a description by metes and bounds, is, in my opinion, to fail to give
any meaning to the word "parcels." That word, as has been shown, was
taken from the Manitoba statute where it appears in conjunction with the word
"boundaries" and that statute in turn was taken from the Victoria
Statute. The inclusion of the word "parcels" in the Alberta Act and
in these statutes cannot have been without the intention that it should be
assigned a different meaning than "boundaries."
The further question to be decided is as to whether, by
reason of the provisions of The Land Titles Act, the claim by the C.P.R.
to the minerals can be asserted against Anton Turta and his successors in
title. At common law, such
[Page 473]
claim would be sustained. The claim of the respondents must
be supported, if at all, on the ground that being bona fide purchasers for
value the statute protects them against the claim. If the statute were similar
to the Real Property Act of Manitoba the claim of the Railway Company would, in
my opinion, fail. But, as I have pointed out, from the very outset, when the
Dominion by the Territories Real Property Act introduced this system of land
holding into the Northwest Territories, the rights of those deprived of land by
misdescription have been preserved. We cannot concern ourselves with the reason
for this departure from what has long since been understood, at least in the
Province of Manitoba, as the principle underlying the Torrens system. That is
as it was described in the passage from the judgment in Fels v. Knowles,
referred to by Sir Louis Davies in the Boulter Waugh case.
There are, it is true, certain sections of the Alberta
Statute which, if considered alone and construed literally, would appear to
lend some support to the claim of the respondents, that the statement of the
law in Gibbs v. Messer applies without reservation in Alberta. As
an illustration of this, s. 25 says that the memorandum endorsed by the
registrar on the duplicate certificate of title shall be received in all courts
of law as conclusive evidence of its contents and that the instrument of which
it is a memorandum has been duly registered. Read alone, divorced from the rest
of the Act, this would mean that as a matter of evidence the unauthorized
memorandum endorsed on certificate No. 424 that the land without any
reservation had been transferred to Podgorny could not be controverted. But
this would render meaningless the reservations in ss. 44, 104 and 106, to which
I have referred, and cannot accordingly be so construed. Section 25, it may be
noted, in this respect reenacted s. 43 of the Territories Real Property Act which
was taken from s. 35 of the Manitoba Act of 1885. The section may have fitted
into an Act where "the register is everything" but it cannot be
construed literally in the Alberta Act.
Again some reliance is placed upon s. 135 which says that,
except in the case of fraud (presumably to which such person is party or
privy), a person proposing to take a transfer from the owner of any land for
which a certificate
[Page 474]
of title has been granted shall not be found or concerned to
enquire into or ascertain the circumstances in which, or the consideration for
which, the owner became registered. This is another section, the predecessor of
which was simply taken from s. 141 of the Real Property Act of Manitoba.
It can be reconciled for obvious reasons with the provisions of the Manitoba
Statute and, if it means that a prospective purchaser is not by virtue of s. 47
concerned to enquire whether the title holder holds as trustee for others and,
as stated by that section, is to be deemed the absolute and beneficial owner of
the land, it can be reconciled with the rest of the Alberta Act. But I think it
cannot be so construed as to defeat the rights of those deprived of their
property by misdescription which are expressly reserved to them by the sections
to which I have referred and of which they could only be deprived by statute.
It has also been contended that the language of s. 108 lends
some support to the position of the respondents in that it refers, inter
alia, to a person deprived of lands "by any error, omission or
misdescription in any certificate of title" who, by the provisions of the
Act, is barred from bringing an action for ejectment. The history of this
section, however, must be considered. It reproduces s. 108 of the Territories
Real Property Act which was taken from s. 120 of the Manitoba Act of 1885.
In the Manitoba Act, where a person deprived of land by misdescription could
not recover it from a bona fide purchaser for value, the meaning of s. 120 was
manifest. However, while omitting this protection in the Territories Real
Property Act and in ss. 42, 104 and 106 of the Act of 1906, the reference
to misdescription was not deleted. Unless these three sections are to be
ignored, the part of s. 108 to which I have referred is meaningless.
I am further of the opinion that the petroleum was
adequately excepted from the operation of the transfer to Podgorny by the
language of that instrument and the ownership of that mineral remained in the
Railway Company.
I would allow this appeal with costs as against the
respondent and the third parties in this Court and in the Appellate Division
and dismiss the action with costs, and
[Page 475]
direct that judgment be entered in favour of the C.P.R.
against the third parties in the terms of the prayer for relief in the third
party notice, and for Imperial Oil Company Limited upon its counterclaim, with
costs.
Cartwright J.
:—(dissenting) The facts and relevant statutory provisions are fully set out in
the reasons of my brother Locke.
I understood all counsel to be in agreement that the appeal
should be decided on The Land Titles Act of Alberta as it appeared in 6
Edw. VII (1906) c. 24, and in any event the subsequent changes do not affect
the point which appears to me to be decisive. I shall refer to sections by the
numbers which they bore in the 1906 Statute and to the appellant Railway
Company as "the C.P.R.".
For the reasons given by my brother Locke I agree with his
conclusion that if the facts of this case fall within clause (e) of s.
104 of the Act the appeal must succeed, although the respondent Anton Turta is
regarded as a purchaser in good faith and for value who purchased relying on
the register and without notice of the appellants' claims. While certain
sections of the Act such as 25, 42, and 135, if read alone, would seem to make
the certificate of title of such a purchaser conclusive, they must be construed
with ss. 44, 104 (e) and 106 and the last mentioned group of
sections must be read as provisos to the group first mentioned and as
incorporated with them. I do not understand any of the learned judges in the
courts below to differ from this view, and, if authority for it is required, it
will be found in the judgment of the Court of Appeal in New South Wales in Marsden
v. McAlister ,
particularly at page 306 in the judgment of the Chief Justice and at page 307
in the judgment of Sir G. Innes J.
Section 104 provides:—
104. No action of ejectment or other action for the recovery
of any land for which a certificate of title has been granted shall lie or be
sustained against the owner, under this Act in respect thereof, except in any
of the following cases, that is to say:—
* * *
(e) The case of a person deprived of or claiming any
land included in any grant or certificate of title of other land by
misdescription of such other land or of its boundaries, as against the owner of
such other land;
[Page 476]
Does then the claim of the C.P.R. to the petroleum under the
N.W. quarter of section 17 fall within clause (e)? In my opinion it
does.
It will be observed, (i) that the C.P.R. is a person, at
present (if the judgments below stand) deprived of the petroleum and claiming
it; (ii) that the petroleum is included in Anton Turta's certificate of title
as owner of the quarter-section, and (iii) that the C.P.R.'s claim is against
Anton Turta. Up to this point the claim falls within the words of clause (e).
The next question to arise is whether the petroleum claimed
falls within the words "any land" in the first line of clause (e).
Petroleum is admittedly a mineral. The relevant words in the transfer to
Podgorny are:—"excepting and reserving unto the Canadian Pacific Railway
Company all coal and petroleum which may be found to exist within upon or under
the said land". Whether the effect of these words was to except the
petroleum and so to sever it both as to estate and possession from the estate
in possession of the lands described in the transfer or whether, as Mr. Manning
argues, their effect is not to except the petroleum but only to reserve a profit
à prendre, the result appears to me to be the same. If the petroleum is
regarded as an excepted mineral it is land under the definition of
"land" in section 2 (a) of the Act. If, on the other hand, the
right to the petroleum is regarded as a profit à prendre reserved to the
C.P.R. then it is an incorporeal hereditament and again falls within the
definition of "land" in section 2 (a). I can find nothing in
the context to make the definition section inapplicable. I conclude therefore
that the petroleum, or the right thereto, does fall within the words "any
land".
The next question is whether Anton Turta's certificate of
title in which the petroleum is included is a certificate of title "of
other land", within the words of clause (e). I think that it is.
Had there been in existence certificates accurately declaring the true state of
the title, Anton Turta would have held a certificate of title to the
quarter-section less the petroleum thereunder and the C.P.R. would have held a
certificate of title to the petroleum under the quarter-section. Each would
have been a certificate of title
[Page 477]
to land and each would have excluded the land included in
the other. The certificate of Anton Turta should have been and was for land
other than the petroleum but, wrongly, in addition thereto included the
petroleum.
The next question is whether the land consisting of the
petroleum, or the right thereto, was included in Anton Turta's certicate of
title "by misdescription of such other land or of its boundaries". It
is not suggested that the boundaries of the land included in Turta's
certificate are misdescribed; but the words of clause (e) contemplate a
type of misdescription of land which does not involve any misdescription of its
boundaries. The two types of misdescription are stated disjunctively. If one
takes the word "misdescription" in its ordinary meaning, which is
simply wrong description, it appears to me that when the correct description of
the land to which title has been acquired and for which a certificate is to be
issued is a certain quarter-section without the petroleum thereunder such land
is wrongly described if it is described as being the quarter-section including
the petroleum.
All the learned judges in the courts below take the view
that to bring a case within the terms of section 104 (e) there must be
"two or more distinct parcels of land". In my respectful view,
assuming the proposed test to be a valid one, there are here two distinct
parcels of land, one being the quarter-section less the petroleum thereunder,
and the other being the petroleum under the quarter-section.
The case of Hamilton v. Iredale , relied upon in the courts below, is
distinguishable on the facts. The dispute in that case was as to the ownership
of a certain piece of land to which the plaintiff was able to show a good
documentary title commencing with a Crown grant dated October 8, 1799, but for
which a certificate of title had been issued to the defendant on February 4,
1868. In the Court of Appeal the case was argued and dealt with on the assumption
that the certificate was granted to the defendant on proof of a possessory
title dating from 1847 or earlier. The Court of Appeal held that the exception
contained in s. 115 (5) of the Act there under consideration
[Page 478]
could have no application to such a state of facts. That
section provided that no action of ejectment for the recovery of land should
lie or be sustained against the person registered as proprietor thereof, except
in certain cases of which s-s. 5 was:—
The case of a person deprived of or claiming any land
included in any grant or certificate of title of other land by misdescription
of such other land or of its boundaries as against the registered proprietor of
such other land not being a transferee thereof bona fide for value.
It would seem obvious that there was no misdescription. The
land in question was accurately described. The question was whether the proof
of the plaintiff's documentary title could prevail against the defendant's
certificate. At page 550 of the report Walker J. says:—"Misdescription is
where, intending to describe A, I describe B, or so describe A as to make it
include B." On the facts of the case at bar these words appear to me to
apply to the act of the Registrar when he issued Podgorny's certificate of
title. His intention was, presumably, to perform his duty under the Act and to
issue to Podgorny a certificate for the land which had been transferred to him,
no more and no less. That land was, and should have been described in the
certificate as, "the N.W. quarter of Section 17, excepting and reserving
unto the Canadian Pacific Railway Company all coal and petroleum which may be
found to exist within upon or under the said land". Instead of this
correct description the certificate contained the following description:—"The
N.W. quarter of section 17 reserving unto the Canadian Pacific Railway all coal
on or under the said land." The result is that the Registrar intending to
describe the quarter-section less the petroleum and coal described the
quarter-section less the coal but including the petroleum. This was, in my
opinion, a misdescription.
I conclude, therefore, that on the facts of the case at bar
the claim of the C.P.R. to the petroleum in question is a case falling within
the words of clause (e) of s. 104 and I am unable to find any other
provision in the Act which requires a restriction or modification of the
ordinary meaning of the words used in such clause.
The conclusion at which I have arrived on the point dealt
with above renders it unnecessary for me to consider the ground on which
Clinton Ford J.A. would have allowed
[Page 479]
the appeal or the other points urged by counsel in support
of the appeal. In regard to the submissions of the respondents (i) that Anton
Turta obtained title to the petroleum by adverse possession and (ii) that the
reservation of the petroleum to the C.P.R. was void as offending against the
rule against perpetuities, I agree for the reasons stated by Clinton Ford J.A.
that these arguments must be rejected.
I would dispose of the appeal as proposed by my brother
Locke.
Appeal dismissed with costs.
Solicitor for the C.P.R.: R. R. Mitchell.
Solicitors for Imperial Oil Ltd.: Nolan, Chambers,
Might, Saucier, Peacock & Jones.
Solicitors for Anton Turta and Montreal Trust Co.: Milner,
Steer, Dyde, Poirier, Martland & Layton.
Solicitors for Nick Turta and Wm. Sereda: Manning
& Dimos.
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