De Jong v. Gechter et al., [1978] 2 SCR 62

Supreme Court of Canada

De Jong v. Gechter et al., [1978] 2 S.C.R. 62

Date: 1977-10-27

Nick De Jong (Plaintiff) Appellant;

and

Bernhard Gechter and Raymonde Gechter (Defendants) Respondents.

1977: October 27.

Present: Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Real property—Contract for sale of farm lands—Wife’s refusal to acknowledge consent to disposition of homestead—Specific performance granted with severance of home quarter—The Dower Act, R.S.A. 1970 c. 114, s. 6.

[Senstad v. Makus, [1978] 2 S.C.R. 44, referred to]

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], allowing an appeal from a judgment of MacDonald J. Appeal allowed.

E.W.N. Macdonald and R.B. Miskuski, for the plaintiff, appellant.

D.J. Chernichen, for the defendants, respondents.

The judgment of the Court was delivered orally by

MARTLAND J.—We are all of the opinion that the basis on which the Appellate Division found the existence of an implied condition precedent cannot stand, particularly in the light of the reasons of this Court in Senstad v. Makus[2], which were delivered after the judgment of the Appellate Division in the present case. The appeal is allowed the judgment of the Appellate Division is set aside and the judgment at trial is restored except that the time period fixed in para. 4 of that judgment is altered so as to provide for a period of one month from October 27, 1977. The appellant is entitled to costs in this Court and in the Court below.

[Page 63]

Judgment accordingly.

Solicitors for the plaintiff, appellant: McClung, Frohlich & Rand, Edmonton.

Solicitors for the defendants, respondents: Harradence & Co., Calgary.