Great West Permanent Loan Company v Friesen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1924 |
| Year | 1924 |
| Date | 1924 |
| Court | Privy Council |
Canada (Saskatchewan) - Registration of Titles - Equitable Rights Unregistered Transfer - Mortgagee without Notice of Breach of Trust - “Registered” - Documents lodged for Registration -
Sect. 58, sub-s. 1, of the Land Titles Act of Saskatchewan provides that after a certificate of title has been granted no instrument until registered shall pass any estate or interest in the land, or render it liable as security, save as against the person making the same.
Owners of land in Saskatchewan who were registered under the Act and holders of certificates of title, having contracted to sell the land, executed transfers and deposited them with trustees who were bound by the contract to retain them until the purchasers paid a specific part of the price. The transfers showed that at the date of their execution the money had not been paid. Before the money was paid the trustees handed some of the transfers to the purchasers, who without registering them mortgaged the land therein comprised. The mortgagees had no notice of the breach of trust and acted without negligence. After the payment of the money by the purchasers the mortgagees applied to register their mortgages:—
Held, (1.) that the Act recognized unregistered equitable interests; (2.) that but for the trustees' knowledge of the breach of trust the transfers would have created in them an equitable interest which was assignable upon payment of the money; (3.) that the mortgagees having no notice of the breach and having acted without negligence, the transfers operated as representations to them that the trustees had such an interest; and (4.) that, accordingly, the mortgagees were entitled to have the mortgages to them registered under the Act.
The transfers and mortgages having been lodged at the Land Titles Office for registration were entered in the receiving book in accordance with s. 23 of the Act, and some of the documents were entered in the day book in accordance with s. 25, but none had been entered in the register on the folios constituting the existing certificates of title as provided by s. 27.
Held, that none of the documents were “registered” within the meaning of s. 58 of the Act.
CONSOLIDATED APPEALS (Nos. 67 and 90 of 1924) from a judgment of the Court of Appeal of Saskatchewan, delivered on February 18, 1924, varying a judgment of the Court of King's Bench, delivered by MacDonald J.
The appeals arose out of two actions brought in the Court of King's Bench for Saskatchewan, and gave rise to questions as to the effect of certain provisions of the Land Titles Act of Saskatchewan (R. S. Sask., 1920, c. 67).
The facts and the effect of the judgments in Canada appear from the judgment of the Judicial Committee.
1924. July 28, 29, 31. Tilley K.C., Sweatman K.C. and Pritt for the appellants, the Great West Permanent Loan Company.
Horace Douglas for the Mennonite Land Sales Company, Ld., appellants in the two connected appeals.
Clauson K.C., C. P. Wilson K.C. and Bisschoff for the respondents.
Reference was made to Howard v. MillerF1; Barry v. HeiderF2; Farquharson v. King & Co.F3; Shropshire Union Rys. v. The QueenF4; and to the Land Titles Act (R. S. Sask., 1920, c. 67), s. 2, sub-s. 19 (b), ss. 23, 24, 25, 27, 49, 58, 62, 75, 195.
Oct. 24. The judgment of their Lordships was delivered by
SIR ADRIAN KNOX. These appeals are brought from judgments of the Court of Appeal of Saskatchewan in two actions. In one, the respondents Friesen and others, trustees of the Mennonite Colony, who will be referred to as “the Mennonite Trustees,” were plaintiffs, and the Saskatchewan Mortgage and Trust Corporation, Ld. (hereinafter called “the Trust Company”), the Mennonite Land Sales Company, Ld. (hereinafter called “the Sales Company”), John Murphy, the Great West Permanent Loan Company (hereinafter called “the Loan Company”), J. J. Logan, J. F. Taylor, Geddie McKay, Ld., and J. A. Campbell were defendants. In the other the Sales Company was plaintiff and the Mennonite Trustees were defendants.
In connection with its appeal the Loan Company presented a petition praying for leave to refer to and read on the hearing of the appeal an agreement under seal dated April 2, 1921, to which reference will be made hereafter. On the hearing of the appeals their Lordships allowed this petition. The facts and transactions out of which the litigation arose may be stated as follows:—
The members of the Mennonite colony were the owners of a tract of land near Swift Current in the Province of Saskatchewan, comprising 105,789 acres known as the Mennonite reserve. Individual members of the colony were registered under the Land Titles Act of Saskatchewan as the owners of the several parcels of land comprised in the reserve, and a certificate of title under the Act had been issued to each individual for the parcel in respect of which he was registered as owner. Some of these certificates of title had been deposited as security for advances made to the owners. In the year 1920 the members of the colony desired to sell the whole of the reserve, and on October 28, 1920, the Mennonite Trustees entered into an agreement with Geddie McKay, Ld., for the payment of a commission of $4 per acre “upon the sale and execution and delivery of a contract for the sale of the said lands.” No question was raised as to the authority of the Mennonite Trustees to make either this agreement or the agreements into which they entered later, on behalf of the individual members of the colony who were registered as owners, or as to their right to sue on behalf of and as representing such registered owners.
On November 27, 1920, an agreement for the sale of the whole of the lands was made between the Mennonite Trustees and John Murphy. The purchase money under this agreement was $4,813,399.50, payable as to $5000 on the execution of the agreement and as to the balance by instalments, the last of which was payable on April 21, 1921.
The provisions of this agreement so far as relevant to the questions arising on these appeals were: (a) A covenant by the purchaser to pay the purchase money in the manner set forth in the agreement. (b) A covenant by the vendors on payment of all sums payable by the purchaser to cause to be conveyed and assigned to the purchaser the parcels of land comprised in the reserve by a transfer under the Land Titles Act to be prepared by vendors' solicitors. (c) A provision that time should be of the essence of the agreement. (d) A clause in the words following — namely: “10. It is further agreed that the purchaser shall have the privilege of paying off the whole or any part of the unpaid purchase price at any time previous to such becoming due, on paying all interest and arrears, if any, to date of such payment, without giving any notice or bonus. The vendors hereby covenant and agree to transfer the said lands to the purchaser forthwith at his (the purchaser's) request, and at his (the purchaser's) option, in parcels of 5120 acres, …. whenever and so often as a sufficient sum of money shall be paid under this agreement to fully cover the purchase price, at $45.50 per acre, of the said parcel or parcels of land so requested to be transferred and to leave thereafter a reserve fund in the hands of the vendors of $25,000.00.”
The deposit of $5000 was the only sum paid under this agreement, and on March 1, 1921, default had been made in payment of instalments amounting to more than $500,000. In the month of March, Mr. Geddie, of Geddie McKay, Ld., was negotiating with J. J. Logan and J. F. Taylor to finance the purchase of the reserve, and they agreed to form a company to take over Murphy's contract with certain modifications.
On April 1, 1921, the Mennonite Trustees, as a result of discussions with Logan, submitted an offer to amend the terms of Murphy's contract.
The material alterations were as follows: “1. To reduce the purchase price of the lands therein described to 44 dollars an acre. 2. To alter the terms of payment to read in effect as follows: (a) 5000 dollars cash, the receipt whereof is acknowledged. (b) The sum of 1,000,000 dollars immediately upon the deposit with the trustee hereafter referred to, of transfers of at least 90 per cent. of the said reserve computed on the basis of the lands set out in the agreement of November 27, 1920. (c) The sum of 1,000,000 dollars on November 1, 1921. (d) The sum of 1,000,000 dollars on the first day of April, A.D. 1922. (e) The balance of the said purchase price on the first day of July, A.D. 1922. 3. Nothing herein contained to affect the term of the agreement of November 27, 1920, as to the transfer of the parcels of 5120 acres as therein specified. 4. That the Saskatchewan Mortgage and Trust Corporation, Ld., be appointed as trustee to accept the transfers referred to above, and to perform such other duties as may be required of it by the terms of a trust agreement, its fees and charges to be paid share and share alike.”
On April 2, 1921, the agreement to which reference has already been made was entered into — that is to say, an agreement under seal between the Mennonite Trustees and Geddie McKay, Ld. — whereby the Mennonite Trustees, both as...
To continue reading
Request your trial
-
[1] Thomas Townsend [2] Therese Townsend (now deceased) Appellants/Claimants v Persistence Holdings Ltd Respondent/Defendant
...to the respondent may have conferred an equitable claim on the respondent, on the authority of ( Great West Permanent Loan Co. v Friesen [1924] A.C. 196 at pages 222 to 224) the equitable claim was subject to the condition in the second proviso of Clause 5 and Clause 8 of the Agreement and......
-
Myles v Prospect Properties Ltd
...for the second defendant. Cases cited: (1) Barry v. HeiderUNK(1914), 19 C.L.R. 197, followed. (2) Great W. Perm. Loan Co. v. Friesen, [1925] A.C. 208, followed. (3) Midland Bank Trust Co. Ltd. v. Green, [1981] A.C. 513; [1981] 1 All E.R. 153, dicta of Lord Wilberforce applied. Legislation c......
- Commissioner of Stamp Duties (New South Wales) v Thomson
- Abigall v Lapin