Cite as: Inter Lake Developments Ltd. v. Slauenwhite, 1988 NSSC 12 I N THE SUPREME COURT OF TRIAC DIVISION BETWEEN : INTER LAKE DEVELOPMENTS LTD. - and -JAMES WILLIAM SLAUE'NWHITE HEARD : a t H a l i f a x , Nova S c o t i a , b e f o r e t h e Honourable M r . J u s t i c e John M . Tuesday, A p r i l 1 2 t h , 1988 DECISION: May 5 t h . 1988 COUNSEL: G . Douglas S e a l y , E s q . , J . P a t r i c k M o r r i s , Esq . , S. H. No. 64018 NOVA SCOTIA P u r c h a s e r Vendor Davison , i n 'Chambers: on f o r t h e P u r c h a s e r f o r t h e Vendor
S.H. No. 64018
IN TEE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN: INTER LAKE DEVELOPMENTS LTD. Purchaser
- and -JAMES WILLIAM SLAUBIWEITE
Vendor
DAVISON, J.:
This is an application pursuant to section 3 of the Vendors and Purchasers Act, R.S.N.S., 1967, C. 324,
requesting a determination as to whether an objection to title
conveyed by the Purchaser to the Vendor is a valid objection.
The sections of the Vendors and Purchasers Act
which are relevant for determination of the issue before me
are: 1 In the completion of a contract
of sale of land the rights and
obligations of the vendor and the
purchaser shall, subject to any
stipulation to the contrary in the
contract, be regulated by the following
rules:
( a ) r e c i t a l s , descr ip t ions of p a r t i e s contained i n s t a t u t e s , deeds, instruments, conveyances o r s t a t u t o r y declara t ions , any of than twenty years of t h e contrac t , i n so f a r a s they be inaccurate, s h a l l evidence of t h e t r u t h of ... m atters and descript ions: 3 A vendor o r i n t e r e s t i n land or h i s represen ta t ive may, a t any time and from time t o t i m e , apply i n a summary an ex o f f i c i o master Court [Judge o r Local T r i a l Division of i n respect of any object ion o r any claim fo r compensation, o r any other question o r connected v i t h t h e judge [Judge] o r ex o f f i c i o master [Local Judge] may make the appl ica t ion a s r e f e r any question o ther o f f i c e r f o r inquiry and repor t . The p a r t i e s h e r e t o e n t e r e d an Agreement and S a l e on t h e 1 6 t h day of September, p r o p e r t y known a s "P ine P o i n t , The s o l i c i t o r f o r t h e Purchase r t o . t i t l e b u t o n l y one remains t h a t a c h a i n o f paper t i t l e can t h a t t h e r e a p p e a r s t o be a g a p i n t h e c h a i n of t i t l e a s r eco rded a t t h e R e g i s t r y of Deeds i n t h e County of Queens. More s p e c i f i c a l l y , I am a d v i s e d a s f o l l o w s : 1. The l a n d s i n q u e s t i o n were Hanley. statements and f a c t s , mat ters and which a r e more o ld a t t h e da te unless and except a r e proved t o be s u f f i c i e n t such f a c t s , purchaser of any way t o a judge o r of t h e Supreme Judge of t h e t he Supreme Court] r e q u i s i t i o n o r a r i s i n g ou t of t he contrac t and such order upon appears j u s t , and t o a r e f e r ee o r of Purchase 1987, w i t h r e s p e c t t o Molega Lake, Queens County". r a i s e d a number of o b j e c t i o n s and t h a t r e l a t e s t o t h e f a c t be t r a c e d t o 1947 b u t beyond conveyed i n 1885 t o one Joseph
2.. It is suggested that there exists a deed dated May 12th,
1914, from Joseph Hanley to one Elijah Henley conveying
lands of which the property under search forms a part.
This deed has not been located but is referred to in another
deed by which the property was conveyed in 1947.
3. The 1947 deed is said to be from the executors of the Estate
of Elijah Henley, deceased, to William Slauenwhite who
is the father of the Vendor under the terms of the Agreement
of Purchase and Sale. This deed is dated August 30th,
1947, and was registered at the Registry of Deeds for the
County of Queens and contains the following reference:
And being the same lot of l+d which
was conveyed to the said Elijah Henley
by Deed r Joseph Ehnley dated 12th
May, 1914.
As pointed out by Mr. Justice Hallett in Know v. Veinote (19821, 54 N.S.R. (2d) 666, it has been the practice in Nova Scotia to conduct searches of title which go back at least forty years and this practice relates to the extended limitation period under the Limitation of Actions Act, R.S.N.S. 167, c. 168. Notwithstanding the practice, the solicitor for the Purchaser raised his objections to title after he read an article by C. W. MacIntosh, Q.C. in Vol. 14 of the Nova Scotia Law News, (December, 1987). Mr. MacIntosh, who is a recognized expert in conveyancing law in the Province of Nova Scotia, makes the point that many lawyers confuse the requirement
t o a s c e r t a i n a s i x t y y e a r c h a i n of s e a r c h r e q u i r e d t o e x t i n q u i s h A c t i o n s A c t . A f t e r r e f e r r i n g Kingdom and Canada, M r . MacIntosh conc ludes w i t h t h e s e r e m a r k s : The practice by some solicitors of
commencing a search 40 years back from
the present appears to be founded on
. a n assumption that the Limitations
of Actions Act had set this as a
standard. This is not the case. The
traditional search period of 60 years
was developed to protect against the
possibility of double claims of title
and to establish a standard, short
of a chain continuous from a grant
from the Sovereign, which would be
recognized as one which a purchaser
would not be able to reject. The reasons
for the 60 year search are as valid
today as they were in 1749.
I n h i s a r t i c l e , M r . of a u t h o r i t i e s o f o u r c o u r t (1979), 41 N.S.R.. (2d) 91 and Dooks v. Rhodes (19821, 52 N.S.R. (2d) 650.
The Vendor t a k e s t h e i n t h e 1947 deed t o t h e m i s s i n g con templa ted by s e c t i o n l ( a ) of -A c t and r e n d e r s t h e m i s s i n g deed i n c o n s e q u e n t i a l . f o r t h e Vendor s a y s t h a t by r e a s o n of t h e terms of t h e L i m i t a t i o n -Act , o n l y t h e Crown would have f o l l o w i n g t h e e x p i r a t i o n of 40 y e a r s . t i t l e w i t h t h e f o r t y y e a r c l a i m s under t h e L i m i t a t i o n of t o a u t h o r i t i e s i n t h e Uni t ed MacIntosh r e f e r s t o a number i n c l u d i n g Stevens v. MacKenzie p o s i t i o n t h a t t h e r e f e r e n c e d e e d of 1914 i s a r e f e r e n c e t h e Vendors and P u r c h a s e r s The s o l i c i t o r a r i g h t which s t i l l c o n t i n u e s
The one issue before me is whether the Purchaser's
objection to title was valid. A determination of this point
doesn't rest on the effect of the Statute of Limitations. There
is no evidence of possessory title before me and according
to the authorities in this country, possessory title can' only
be presumed if there exists paper title for a period of 60
years.
The remaining question is whether the facts, with
respect to the 1914 deed as set forth in the 1947 deed, are
sufficient to extend paper title back to 1914.
I have not been referred to nor do I know of any
authority where section .l(a) of the Vendors and Purchasers
-Act has been judicially considered. In Gunn v. Turner (19061, 13 O.L.R. 158, the court had before it an action for specific performance of an agreement for the sale of lands and at issue was whether the Defendant could produce a good title to the lands. In the course of his judgment, Teetzel, J. commented that the Plaintiff should have applied to the court under the Vendors and Purchasers -Act R.S.O. 1897, c. 134. His decision was subsequently affirmed by the Divisional Court. At issue was a deed which was more than 20 years old which contained a recital that the grantee was the administrator of his father's estate and that the land
was conveyed t o him i n s a t i s f a c t i o n of due t o h i s f a t h e r . It was held r e c i t a l i n a deed 2 0 y e a r s o l d , t h e t r u t h of t h e f a c t s t h e r e i n s t a t e d i n t h e absence of t o t h e con t r a ry . S imi l a r ly i n Bolton v. 7 Ch.D. 766 , a r e c i t a l was found of proof of t h e f a c t . The headnote i s r e p r e s e n t a t i v e of dec i s ion of t h e c o u r t and it reads i n p a r t a s fol lows: Under t h e Vendor 1874 (37 6 38 V i c t . recital i n a conveyance m o r e than twenty y e a r s o ld , t h a t t h e vendor i n fee simple , is s u f f i c i e n t of t h a t fact, and of t i t l e can be fa r as t h e recital t o be inaccura t e ; a f o r t y y e a r s ' t i t l e is n o t requi red . This l a t t e r case was Law of Real Proper ty , ' (10 th e d ) , by Cheshire a t 334 a s a u t h o r i t y f o r t h e p ropos i t i on t h a t t h e burden show t h a t r e c i t a l s i n deeds o l d e r than 20 years a r e i naccu ra t e . I t is my r u l i n g t h a t t h e r e c i t a l a s s e t f o r t h i n t h e 1947 deed should be accepted f o r t h e t r u t h of t h e informat ion t h e r e i n contained i n t h e absence of t h a t it i s s u f f i c i e n t t o e s t a b l i s h paper t i t l e beyond A s t h e Purchase r ' s ob jec t ion t h e d i scha rge of a debt t h a t t h i s r e c i t a l , being a was s u f f i c i e n t evidence of proof London School Board (18781, t o be s u f f i c i e n t evidence t h e and Purchaser Act, c. 781, s .2 , a w a s s e i s e d evidence no p r i o r abstract demanded except s o s h a l l be proved and i n such cases r e f e r r e d t o i n The Modern l i e s on t h e purchaser t o evidence t o con t r a ry and 6 0 years . t o t i t l e is r e s t r i c t e d t o t h e
- 7 fact that the 1914 deed was not recorded, it is invalid.
If the parties cannot agree as to costs, I will
hear them on that issue.
Halifax, Nova Scotia
May 5, 1988
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.