The learned critic thinks these cases may be supported upon "the well known principle of resulting trusts." He assumes that the principle is applicable, and treats the cases accordingly. In discussing such a purely equitable question with one whom I recognize to be an expert in equity, I have the satisfaction of noting that this theory was not set up by the very eminent equity counsel who obtained the judgments on the other ground. The principle is inapplicable, I think, for two reasons. (1) Because the transaction was a loan as distinguished from a purchase. This was clearly so as regards Brown v. McLean. It was also substantially so in Abell v. Morrison. Although the latter was a case of purchase, as between Margaret Morrison and the defendant, yet the purchase money was raised and the prior mortgages paid off out of the proceeds of a third mortgage made by the defendanta circumstance which seems to have escaped the learned critic's eye in tracing the legal estate. The following extracts from leading authorities seem to cover the point:-" But no trust will result unless the person advance the money in the character of a purchaser; for if A. discharge the purchase money by way of loan to B., in whose name the conveyance is taken, no trust will result in favour of A., who is merely a creditor of B. And on the other hand, should B. advance the purchase money, but only on account of A., then A. is the owner in equity, and B., who takes the conveyance, stands in the light of a creditor (h). "If one pay purchase money at the request of and by way of loan to the person in whose name the property is taken, there will be no resulting trust, because the lender did not advance the purchase money as purchaser, but merely as a lender " (i). (2) Resulting trusts arise in such cases as the present, only by the intention of the parties. (h) Lewin on Trusts, 8th ed. 163. In Standing v. Bowring, above referred to, the plaintiff relied upon a resulting trust, but it appeared that at the time of the transfer she did exactly what she intended to do, and hence it was held that no such trust arose. Applying this reasoning to the cases in question, can it be argued that the intention of either Brown or Morrison, at the time, was to take an assignment of the mortgages instead of a discharge? Neither of them nor their counsel attempted to set up such a case as that, for the evidence was all the other way. The only argument open to them was that in doing exactly what they intended to do, they made a mistake. The interpretation placed upon certain sections of the Registry Act by the Canada Law Journal critic is quite as original as any other portion of his argument. He seems to adopt one canon of construction for the plaintiff and another for the defendant. He says "the defendant bought the property of Margaret, and not actually knowing of the plaintiff's lien, paid off the prior mortgages out of the purchase money, and had certificates of their discharge registered." Later on he says: "The defendant's claim was based on the prior mortgages which, as he claimed, though discharged in form, were nevertheless still subsisting in equity, and of course the plaintiff was not in a position to deny notice of them." Why not? Because they were registered before his lien. For a similar reason one would suppose the defendant "was not in a position to deny notice" of the plaintiff's lien. By a dexterous application of section 76 of the Registry Act, the learned critic draws the singular inference that subsequent purchasers or mortgagees are protected by the Act, but that prior registered rights are not. Treating next of section 82 and of the prior mortgages, the critic says:" Besides, they were registered prior to his own (the plaintiff's) lien, and, under this section if not effectually discharged in equity as encumbrances, this section assisted the defendant and not the plaintiff." In reaching this conclusion of course everything depends upon the clause in italics. But for practical guidance it would be useful to know by what means a conveyancer can discover whether any given mortgage, a discharge of which has been registered, has or has not been "effectually discharged in equity as an incumbrance." The difficulty of reconciling section 83 with the view of Abell v. Morrison, contended for by the critic, is candidly admitted, and he attacks it in the following manner. After quoting the clause:-"No equitable lien, charge or interest, affecting land shall be deemed valid in any Court in this Province as against a registered instrument executed by the same party, his heirs or assigns," he argues that "the same party" must be interpreted to mean not the mortgagor, but the mortgagees "who by their discharge reconveyed the property to her." It had already been shewn that the plaintiff bargained for and obtained his lien before the defendant's equity accrued, so that if the mortgagor was "the same party" the defendant's contention was transparently erroneous. But the same result would seem to follow from an adoption of the critic's view, for the defendant would still be setting up an equitable lien, charge or interest, affecting land against a registered instrument (or instruments, to wit, discharges of mortgage) executed by the mortgagees, who, according to the critic's opinion, are to be treated as "the same party" referred to in the section. A. C. GALT. 1 TENANCY BY ENTIRETIES. The discussion on the effect of the Married Woman's Property Act upon the estate by entireties is again raised by the decision of Mr. Justice Falconbridge in Re Wilson and Toronto Incandescent Electric Co., noted in the last number of our Occasional Notes, p. 107. His Lordship decides that a grant to a man and his wife, under the existing state of the law, vests in them an estate in common as if they were strangers to each other; consequently the estate by entireties must no longer exist. As the full text of the judgment is not yet reported, we are under the disadvantage of not having before us his Lordship's course of reasoning. We are not without dicta, however, upon this important phase of the law, several decisions upon which have already been given in England; and the point has also been adverted to in this Province. It is our purpose to examine them in order, first reproducing from authoritative sources the exact characteristics of the estate by entireties. Blackstone says: "If an estate in fee be given to a man and his wife, they are neither properly joint tenants, nor tenants in common; the husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my; the consequence of which is that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor (a). And Littleton (b) speaks of the reason thus:-" And the cause is, for that the husband and wife are but one person in law, and are in like case as if an estate be made to two jointenants, where the one hath by force of the jointure the moity in law, and the other, the other moity, etc. In the (b) Sec. 291. (a) 2 Com. 282. same manner it is where an estate is made to the husband and wife and to two other men, in this case the husband and wife have but the third part, and the other two men the other two parts, etc., causa qua supra." In Green dem. Crew v. King (c) it is said, "This estate differs from joint tenancy, because joint tenants take by moieties, and are each seised of an undivided moiety of the estate, per my et per tout, which draws after it the incident of survivorship, or jus accrescendi, unless either party chooses in his lifetime to sever the jointure. But husband and wife being considered in law as one person, they cannot, during the coverture, take separate estates; and therefore, upon a purchase by them both, they cannot be Beised by moieties, but both and each has the entirety. They are seised per tout, and not per my. The husband, therefore, cannot alien or devise that estate, the whole of which belongs to his wife, as well as himself." It is evident from these authorities that the reason why the joint estate of husband and wife differs from a joint tenancy is, that the husband and wife are considered in law as one person, and it is all the same as if there had originally been a sole seisin of the land. The composite person, so to speak, lives on and is seised of the entirety as long as the survivor of them lives and is seised. And yet the reason does not enter into other cases which will presently be mentioned. In Pollock v. Kelly (d) it is said, "We are of opinion that the operation of the conveyances was to grant to Mr. and Mrs. Pollock an estate by entireties; for to speak of a grant to a husband and wife as an estate of joint tenancy is, properly speaking, a solecism." So it is, where the grant is made to husband and wife. But it is clear from authorities, though the reason is not clear, that husband and wife could by a gift preceding marriage take as joint tenants. The contrast is strikingly shown by Coke. Thus, "If a reversion be granted to a man and a woman, they are to have moieties in law; but if they intermarry and then attornment is had, (c) 2 W. Bl. 1213. (d) 6 Ir. C. L. Rep. 372. |