· ' Cite as; Salsman Investments Ltd. v. Howland, 1990 NSSC 3 1990 S.H. No. 73846 IN THE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN: SALSMAN INVESTMENTS LIMITED, PLAINTIFF - and THOMAS HOWLAND and BOZ.ENNA HOWLAND, DEFENDANTS HEARD: At Halifax, Nova Scotia, before the Honourable Mr. Justice David W. Gruchy in Chambers, on August 22nd, 1990. DECISION: September 27, 1990 COUNSEL: Elizabeth M. Haldane, Solicitor for the Plaintiff David F. English, Solicitor for the Defendant
1990 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: SALSMAN INVESTMENTS LIMITED - and THOMAS BOWLAND and BOZENNA HOWLAND GRUCBY, J.: The plaintiff is and is the vendor in an agreement with the defendants, Thomas The agreement of purchase and Nova Sco.tia Real Estate Association and Sale". It consists of acceptance. The offer was dated acceptance of that offer was dated May 25th, 1990. I am informed by no problems with respect to agreement or otherwise, and S. H. No. 73846 PLAINTIFF DEFENDANTS Salsman Investments Limited of purchase and sale Howland and Bozenna Howland. sale is an "approved form Agreement of Purchase the terms of an offer and May 22nd, 1990 and the the parties that there are time limits, either in the that provided title is
- sufficient, the transaction will proceed. Mr. David F. English represents the purchasers. He objected to title by letter addressed to Mr. George Caines, agreement of purchase and sa Ie vendor. The letter stated, in part: "There is an insufficient root of title to lands in question. We are unable to locate a Warranty Deed behind 1967, and to a warranty deed. We are not prepared to of title on two quit July 21, 1902, between C. Brown, to John W. 95, page 133, Windsor Registry of Deeds, recorded the 9th of October, 1902. quit claim deed dated John W. Brown and M~ggie in Book 104, page 95, Windsor Registry of Deeds, recorded the 21st of April, 1908." Apparently, on the to title, the plaintiff has taken this action and has asked for an order pursuant to the R.S.N.S. 1989, c. 487. In his objection forth the entire title, as question. I will set it forth below: "QCD John Brown et ux B95 P133 Mary C. July 21, 1902 Oct. 9, 1902 and $500.00 John W. L/Q inter alia (72~ acres) 2 dated June 19th, 1990 who is described in the as the solicitor for the we require sixty years base our certificate claim deeds, one dated John Brown and Mary Brown, recorded in Book The second is a April 6, 1908, between Brown, and recorded basis of that objection Vendors and Purchasers Act, to title, Mr. English set known, to the property in Brown
- 3 QCD John W. Brown et ux
B104 P95 Maggie
April 6, 1908
April 21, 1908 and
$600.00
James Brown Conveys 95/133 WD Reginald Brown, unmarried
B266 P75 George Brown et ux
Aug. 23, 1967 Alma
Sept. 8, 1967 heirs-at-law James Brown
$1.00
and Lloyd Patterson Whereas James Brown, late of Walton, in the County of Hants and Province of Nova Scotia, died intestate, seized and possessed of the hereinafter described lands. And Whereas the Grantors· herein, Reginald Brown and George Brown, are the only heirs-at-law of the said James Brown, deceased. And Whereas the Grantors are desirous of . conveying their interests in the hereinafter described lands to the Grantee herein. Conveys 104/95 Agmt Lloyd Patterson
B279 P238
Sept. 1, 1967 and
April 14, 1970
$1. 00 Russell M. White
timber on 266/75 for the price of $3,000.00 R 320/769
- 4 Mtg Lloyd Patterson et ux
B286 P4l7 Mabel
April 16, 1971
April 19, 1971 and
$6,000.00
Avco Delta Realty Limited mtg 266/75 inter alia R 355/485 Plan P-647 Lloyd B. Patterson
Jan. 25, 1974
Feb. 28, 1974
copy attached WD Lloyd B. Patterson et ux
B322 P302 Mabel L.
Feb. 27, 1974
Feb. 28, 1974 and
$1. 00
George E. Fraser Conveys L/Q (46.32 acres with row) WD George E. Fraser et ux B331 P775 Audrey Oct. 5, 1974 Oct. 8, 1974 and $1. 00 Walter John Hawkins Conveys 322/302 WD Walter John Hawkins et ux B411 P772 Mona Marie July 24, 1980 Aug. 1, 1980 and $1. 00 Salsman Investments Limited Conveys L/Q"
- 5 The lands, I am and are located at Tennecape, a rural area in Hants County. No defence was filed or other material supplied to me by the defendants. The respective positions of the parties are set forth in their pre-hearing memoranda, dated August 20th, 1990. The I should proceed on the basis of the information contained in the statement of claim, the affidavit of Elizabeth Haldane and the pre-trial memoranda. Alan G. Hayman, represented a predecessor in title to the vendor. The Vendors and inter alia, as follows: II 2. In the completion of of land, the rights and . vendor and the purchaser any stipulation to the contrary in the contract, be regulated by the following rules: (a) recitals, statements and descriptions of facts, matters and in statutes, deeds, instruments, or statutory declarations, are more than twenty years old at the date of the contract, unless far as they are proved shall be sufficient evidence of such facts, matters and descriptions; (b) a registered release of a mortgage shall be sufficient the mortgage without the mortgage, unless and informed, are vacant lands Nova Scotia. Tennecape is each parties have agreed that Q.C. also appeared. He Purchasers Act, provides, a contract of sale obligations of the shall, subject to parties contained conveyances any of which and except in so to be inaccurate, of the truth discharged evidence of the production of except in so far
- 6 as the release is proved to and the vendor shall not be bound to produce the mortgage unless it is in his possession or power. 3. In an application an action, it shall not be necessary to produce any evidence which by wi th as between vendor evidence therein declared as between vendor and facie be sufficient for action or application. 4. A vendor or purchaser in land or his representative may, at any time and from time to time, to a judge or local judge of the Trial Division of the Supreme Court requisi tion or objection compensation, or any other out of or connected with the contract and judge or local judge may the application as appears any question to a referee for inquiry and report." The title in question a crown grant and cannot be traced to a warranty deed which is sixty or more years old. Ordinarily, there is no question but that a title traced back would not be considered a good root of title. "A I good root of title I the first deed or grant the land registered for which did not depend on for its validity." [Anger of Real Property (2d), p. 1120, footnote (4)] It is not necessary, to decide the appropriate period be inaccurate, under this Act or in Section 2 is dispensed and purchaser, and the to be sufficient purchaser shall prima the purposes of the of any interest apply in a summary way in respect of any or any claim for question arising the make such order upon just, and refer or other officer cannot be traced to only to a quitclaim deed was considered to be of the fee simple in more than forty years any other instrument and Honsberger Law on the facts before me, required to establish
- title. If either of the 1902 good root, then the time requirement first warranty deed in the chain of title is 1967 period thereby created cannot standard. In this case, both the 1902 and 1908 conveyances are in quit claim form. A quit claim deed which the vendor has. There is no warranty of title. the vendor has no title, no title passes. has good title, good title passes. It has been submitted of the recitals in the 1967 deed and Purchaser Act are sufficient to give ti t Le , The submission is to the effect that reliance be placed 'upon the recital which is more than twenty years old; therefore, the ownership only arise from the 1908 deed, be relied upon. The first recital heirs of James Brown sets forth intestate, seized and possessed of the hereinafter described lands" . "A recital is evidence only of what is actually 7 and 1908 deeds can form the has been met. The and the meet the least demanding transfers only that title If If the vendor that the combination and s , 2 of the Vendors a good root of may of James Brown, which can is of sufficient age to in the 1967 deed from the that James Brown "died
- 8 reci ted ... " [Anger and Property, supra, p. 1282] But the recital herein merely says that James Brown died "seized and possessed" not say how he had achieved that degree of ownership. fact, that ownership may have alone, without reliance upon does not indicate when James Brown died or when he obtained the ownership. The fact that he of the land in question may have been of relatively recent origin and may have been a recital does not change the fact that the was a quit claim deed. The 1908 of title and this recital does not change that fact. The parties may satisfactory title by means of the required period. I do information to draw any conclusions the recital in the 1967 deed, if supplemented with additional information, may create the title needed by the parties. The objection to and an appropriate order will issue on the request of the defendants. There will be no costs awarded in this matter Honsberger Law of Real of the lands. It does In been achieved by possession the 1908 deed. The recital was "seized and possessed" possessory title only. The 1908 conveyance deed was not a good root well be able to prove evidence of possession for not have sufficient factual on that period, but title, however, is valid,
- 9 as it carne before the court reference for an adjudication to the title objection. Order accordingly. Halifax, Nova Scotia September 27th, 1990 in the manner of a joint
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