Cases and Notes on Land Law 9781487576202

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CASES AND NOTES ON LAND LAW

Cases and Notes on Land Law

The Honourable Bora Laskin A Justice of Appeal in the Supreme Court of Ontario Formerly Professor of Law in the Faculty of Law, University of Toronto

UNIVERSITY OF TORONTO PRESS

Copyright, Canada, 1958, by University of Toronto Press Reprinted in 2018

Reprinted, 1959 Revised Edition, 1964 Reprinted in the U.S.A. 1966, 1969 ISBN 8020 2031 3 ISBN 978-1-4875-7706-3 (paper)

PREFACE THIS COLLECTION OF CASES, notes and statutes, leavened here and there by text (some borrowed and some contributed by me), is an attempt to bring together in an orderly fashion material on land law with a Canadian emphasis which might be useful as a teaching aid in any Canadian common law school. I entertain some hope that the practising lawyer may also find the collection useful as a source of selective authorities on the matters covered, as well as providing him with some analytical and critical approaches to problems falling within the limits of my treatment of the subject of land law. The scope and arrangement of the materials included in the book reflect the distribution of property teaching in the University of Toronto Faculty of Law, a distribution which shows a compulsory first year course in personal property and land law, a compulsory second year course in real estate transactions, an optional third year course in community planning law, and a compulsory third year course in wills and trusts (administration of estates) which emphasizes also estate planning. This is, by no means, the only accepted or possible distribution for Canadian purposes, and I am aware that my collection straddles several courses in other Canadian common law schools given in different years. While my scheme of organization exhibits what I believe is a necessary concession to history in this subject, I have, with this limitation, pointed my selection of materials to the contemporary understanding and use of the principles and institutions of land law as seen through Canadian case law and legislation. There is little room for pride here in originality either by our judges (for whom, however, there was the extenuation of stare decisis) or by our legislators. Landlord and tenant law, which takes up a relatively generous portion of this casebook, is a good illustration of a rather indiscriminate adherence to English doctrines without much effort to examine the different roles played by the lease here and in England. From time to time, in the notes to the cases reproduced in full or in part, I have suggested alternative or connected lines of inquiry designed to shake out some of the inevitability in which land law is often shrouded. It is not intended by this to make a fetish of uncertainty or to confuse, but simply to induce students (and lawyers too) to sharpen their critical faculties and powers of analysis and to use them in land law as they do in such subjects as contracts and torts. While England has gone much farther in statutory reform of land law than we have in Canada, it is of interest to note a recent call there for a more contemporary approach to the subject. Professor Hargreaves in a review article on the seventh edition of Cheshire's standard text, The Modern Law of Real Property, had this to say about English land law: "Not since Littleton has there been a serious attempt to isolate its principles from their historic origin, to examine them as living contributions to contemporary thought, and to apply them in the construction of a systematic analysis of the whole field which would satisfy the demands of scientific jurisprudence and prove worthy of the greatest system of property law that the world has ever known" (Modern Real Property, (1956) 19 Mod. L. Rev. 14). The United States has been much more alive to this kind of call, as witness works like the American Law lnstitute's Restatement of Property, Professor Powell's treatise on Real Property and the seven-volume work entitled American Law of Property. There has been nothing in Canada comparable to the English texts, let alone those in the United States (where there is a proliferation of general casebooks and specialized treatises as well). We

vi

PREFACE

have to go back to Armour's second edition of Real Property, 1916, to find any general treatment of the subject, and this is a work which, basically, is founded on Blackstone. We will get no farther than Armour unless it be by the efforts of the law teachers, to whom Professor Hargreaves feels England too will have to look for any systematic study of basic land law problems. There are three particular professional acknowledgments which I most happily make in addition to the general acknowledgment of help that one accepts as of course from earlier and older toilers in the field. Professor R. R. Powell of Columbia University School of Law and his publishers, Matthew Bender and Company Inc., Albany, New York, have kindly given me permission to reproduce verbatim sections 17 to 28 inclusive of volume I of Professor Powell's admirable treatise on Real Property. Similarly, West Publishing Co., Saint Paul, Minnesota, have allowed me to reproduce the following portions of the late Professor Bigelow's Introduction to the Law of Real Property: chapter I, section 6; chapter 2, sections 7 and 8; and the first third of chapter 5. The third professional acknowledgment is to the American Law Institute for its permission, readily given, to quote in full the following materials from the Restatement of Property: sections 9, 18, 19 (and comment), 20 (and comment a), 21 (and comment a), 22,457,458,459, and comment to section 450(e), comment a to section 453, and comment c to section 483. I am under obligation also to the Incorporated Council of Law Reporting for England and Wales for its permission to reproduce cases and attendant fact statements in the law reports published under its auspices. The toil and tedium associated with the preparation of a casebook such as this were shared with me by Mrs. David Fuller and Miss Margaret McKellar who typed my manuscript, and I am glad to record my appreciation of their assistance. Miss Jean Houston of the University of Toronto Press provided valuable help in her supervision of the technical side of the printing and publication of this volume. BORA LASKIN

Faculty of Law University of Toronto

I have seized upon the occasion of a reprinting of this book to make a few minor revisions and to bring the statutory references, particularly for British Columbia and Ontario, up to date. September 1, 1964 B.L.

CONTENTS PREFACE

V

TABLE OF CASES

X

INTRODUCTION

3

I.

HISTORICAL BACKGROUND

l. The Feudal System

2. Land Law and Tenure in Canada II.

POSSESSORY EsTATES

l. Doctrine of Estates

2. Seisin and Possession 3. Seisin and Conveyancing 4. Common Law Consequences III.

EsTATE IN FEE SIMPLE

1. 2. 3. 4. 5.

Characteristics and Mode of Creation The Rule of "No Remainder after a Fee Simple" lnheritability of an Estate in Fee Simple Protection Defeasible Estates in Fee Simple

IV. THE RlsE AND FALL OF THE EsTATE IN FEE TAIL l. The Development of the Estate : Alienability and the "Landed" Tradition 2. Abolition of the Fee Tail

V.

VI.

LIFE EsTATES : HUSBAND AND WIFE

1. Creation and Types of Life Estates 2. Husband and Wife: The Common Law 3. Curtesy 4. Dower Dower in Mortgaged Land Election : Choice of Dower or Other Benefits Dower in Defeasible Estates 5. Homestead (Family Home) Legislation 6. The Deserted Wife's Occupation Interest in the Matrimonial Home NON-FREEHOLD EsTATES: INTERESTS LESS THAN EsTATES

l. Non-Freehold Estates

2. Interests Less Than Estates 3. Some Problems of Classification

5 5 26 32 32 33 37 39 40 40 43 45 50 51 60 60 66 68 68 70 71 72 86 92 102 103 104 118 118 129 162

viii VJI.

CONTENTS LANDLORD AND TENANT

I. Introductory Note: The Lease as Conveyance and Contract 2. Leases and Agreements for Leases Interesse Termini and Possession Damages on Failure or Inability of Lessor to Give Possession: Liability of Lessor and Holdover Tenant 3. Assignment and Sublease: Renewal 4. Use and Enjoyment of Leased Premises (a) Landlord's Obligations (b) Tenant's Obligations Covenants to Repair and Insurance (c) Fixtures 5. Rent (a) The Obligation and Its Enforcement Percentage Leases (b) Excuse for Non-Payment 6. Termination: Creation of New Tenancy on Landlord's Failure to Repossess

VIII. CoMMON LA w FUTURE INTERESTS

Reverter on Dissolution of a Corporation Remainders Equitable Contingent Interests The Rule in Shelley's Case IX. EQUITABLE EsTATES AND THE STATUTE OF USES

1. Uses before the Statute of Uses

2. 3. 4. 5.

Raising a Use Springing and Shifting Uses The Statute of Uses Effect of the Statute of Uses Future Interests in Chattels

X. CoNCURRENT EsTATES

1. 2. 3. 4.

Concurrent Estates at Common Law and in Equity Statutory Reform Severance of Joint Tenancies: Some Problems Incidents of Co-Tenancy (a) Possession and Accounting between Co-Tenants Leases by a Co-Tenant (b) Repairs and Improvements 5. Partition 6. Co-Ownership of Personalty

XI. BENEFITS AND BURDENS AS BETWEEN OWNERS OF LIMITED INTERESTS: WASTE

1. Introductory Note 2. Benefits and Burdens Insurance Emblements 3. Waste

180 180 182 189 190 192 212 212 241 258 261 278 278 281 282 319 327 338 344 354 358 361 361 362 362 363 366 369 371 371 373 376 386 386 391 392 401 404 405 405 405 414 417 419

ix

CONTENTS

XII.

ENHANCING AND LIMITING THE

Use OF LAND:

BENEFITS AND BURDENS THROUGH

CoVENANTS, EASEMENTS AND PROFITS

1. Introductory Note 2. Covenants (a) Validity: Problems of Construction (b) Running of Covenants: In General (c) Touching and Concerning: Landlord and Tenant Cases 3. Restrictive Covenants between Holders in Fee Simple (a) Conditions of Enforceability (b) Some Problems of "Touching and Concerning" (c) Building and Other Schemes of Development (d) Modification and Discharge of Restrictive Covenants 4. Easements (a) Characteristics and Types (b) Creation Prescription Party Walls (c) Scope (d) Termination 5. Profits

XIII.

ADVERSE POSSESSION

443 443 443 443 471 491 503 503 520 533 535 541 541

557 576 590 592 597 598 613

1. Introductory Note 2. Running of the Limitation Period 3. When Possession is "Adverse" Disabilities 4. Effect of the Running of the Limitation period

613

INDEX

653

620

631

645 646

TABLE OF CASES [A page number in italics indicates a case that is reproduced in full or in some material part. The other page numbers indicate cases that are abstracted or referred to in connection with a problem or as illustrative of the text.] A.-G. v. Comox Logging Company, 512 A.-G. v. Harrison, 576 A.-G. of Alberta v. Huggard Assets Ltd. and A.-G. of Canada, 18 A.-G. of Canada v. Krause, 627 A.-G. of Nova Scotia v. McDougall, 424 A.-G. of Ontario v. Mercer, 30 A.-G. of Saskatchewan v. Whiteshore Salt & Chemical Co. Ltd. and Midwest Chemicals Limited, 320 Aaroe and Aaroe v. Seymour, 456 Abell v. Woodbridge and York, 576 Abell v. York, 597 Abraham v. The New York Cafe, 184, 186 Achdus Free Loan Society v. Shatsky, 589 Ackroyd v. Smith, 556 Acton Tanning Co. v. Toronto Suburban Ry., 151 Adams, Re, 50 Adamson v. Bell Telephone Co. of Canada, 556, 558 Adamson v. Busch, 114 Addis v. Burrows, 125 Addiscombe Garden Estates Ltd. v. Crabbe, 181 Adler v. Blackman, 326 Adler v. Upper Grosvenor Street Investment Ltd., 208 Agency Company Limited and Templeton v. Short, 620 Aglionby v. Cohen, 50 Airey, Re, 42 Akerley v. Bellefleur, 605 Albay Realty Ltd. v. Dufferin-Lawrence Development Limited, Re, 453 Alberta Loan & Investment Co. v. Johnson, 590 Alexander v. Herman, 182,496 Alexander v. Malcheski, 540

Alexander v. Rayson, 300 Alexander Brown Milling & Elevator Co. v. C.P.R., 212 Algoma Ore Properties Ltd. v. Smith, 29 Allen v. Gomme, 596 Allison v. David, 648 Allport v. Securities Corp., 255 Altbaum v. Northover, 324 Amos, Carrier v. Price, In re, 69 Anderson v. Ontario Rock Co., 557 Andrews, Andrews v. Board, Re, 409 Androws, Re, 30 Angel v. Jay, 459 Anon. (Moore 159), 495 Anstruther-Gough-Calthorpe v. McOscar. 245 Archer's Case, 347, 359 Archibald v. Richardson, 281 Arden v. Pullen, 250 Argles v. McMath, 267 Armstrong, Re, 359 Ashe v. Hogan, 649 Asher v. Whitlock, 614 Ashforth, Re, 349 Ashwin v. Lash, 324 Atkinson v. Farrell, 326, 417 Atkinson's and Horsell's Contract, In re, 649 Attrill v. Platt, 597 Auld v. Scales, 211, 453 Austerberry v. Oldham, 478 Avery v. Wood and Findlay, 195 Backus v. Smith, 589 Badalato v. Trebilcock, 266, 320 Badgerow, Re, 359 Bagshaw and O'Connor, Re, 322 Bailey, Re, 49 Bain v. Fothergill, 189, 190 Baker v. Harris, 597, 598

TABLE OF CASES

Baker v. Sebright, 441 Baldwin v. Wanzer, 331 Ballard's Conveyance, Re, 523 Baloise Fire Ins. Co. v. Martin, 259 Baniulis v. Valley, 186 Bank of Montreal v. University of Saskatchewan, 460 Banrevi v. Larman, 325 Barak v. Langtry, 225 Barclays Banlc Ltd. v. Stasek, 319 Barker v. Westminster Trust Co., 50 Barnes v. London Real Property Co., 503 Bamswell v. National Amusement Co., 144 Barr, Re, 417 Barrow v. Isaacs & Son, 208 Barrows v. Jackson, 447 Barry v. Haseldine, 565 Bartley, Re, 537 Bartram v. Rempel, 255 Bartrop v. Blackstock, 45 Baugild and Baugild, Re, 414 Beardmore, Re, 537 Beaulieu, Re, 49 Bell v. Golding, 598 Bell v. Marsh, 596 Bell and Maedel v. Bell and Bell, 635 Bendall v. McWhirter, 104, 133 Bennett, In re, 414 Bennett and White (Calgary) Ltd. v. Sugar City, 369 Berkheiser v. Berkheiser and Glaister, 598 Berry v. Berry, 28 F. Berry Ltd. v. Royal Bank of Scotland, 201 Berube v. Cameron, 627 Besinnett v. White, 506, 512 Bilecki v. Weber, 161 Bing and May, Re, 89 Biscoe v. Van Bearle, 414 Blazewich v. Stefanik (No. 2), 217 Bloomfield v. Hellyer, 128 Blyth v. Dennett, 325 Bolton v. O'Reilly, 279 Booker v. Palmer, 181 Bonner v. Tottenham, 395 Bonomi v. Backhouse, 589 Borman v. Griffith, 567 Borthwick-Norton v. Romney Warwick Estates Ltd., 321 Boulton v. Blake, 503 Boustead and Warwick, Re, 649

xi

Bowers v. Littlewood, 49 Bowes Co. Ltd. and Rankin, Re, 505, 528 Boyczuk v. Perry, 620 Boyd v. Toronto, 589 Boyer v. Warbey, 186, 475 Bradburn v. Hall, 383 Bramley v. Chesterton, 190 Bratt v. Township of Malden, 606 Breams Property Investment Co. Ltd. v. Stroulger, 503 Bremner v. Bleakley, 589 Brereton v. Tuohey, 496 Brethour v. Brooke, 424 Brett v. Cumberland, 503 Brewing v. Berryman, 557 Bridgmen v. Loblaw Groceterias Co., 597 Brightman v. Hazel, 597 British Columbia Forest Products Ltd. v. Nordal, 557 Brooklands Lumber & Hardware Ltd. v. Simcoe, Re, 383 Brown v. Davies, 246,432 Brown v. Street, 557 Brown v. Toronto General Hospital Trustees, 230 Browne v. White, 279 Bruce and Bruce v. Dixon, 557 Brummell v. Wharin, 555 Brunner v. Pollock, 278 Bruyea v. Rose, 614, 650 Bryant v. Lefever, 555 Buck v. Howarth, 181 Buckworth v. Thurkill, 103 Budd v. Marshall, 232 Budd Estate, Harmon v. Furber, In re, 49 Budnitsky v. Gorstein, 217 Bull v. Bull, 374 Bullock's Will Trusts, In re, 353 Bunting v. Servos, 402 Burgess v. Woodstock, 127 Bums v. Hodgson, 323, 326 Burt v. Owen, 86 Buscombe v. Stark, 257 Butler Estates Ltd. v. Bean, 280 Butterfield v. Mabee, 616 Buyers v. Begg, 460 C. P. R. v. Brown Milling Co., 617 C. P. R. v. The King, 152 Cable v. Bryant, 555

xii

TABLE OF CASES

California Wall Bed Co. of Can. v. Prudential Life Assur. Co., 277 Camden Nominees Ltd. v. Slack, 192 Cameron, Re, 386 Campbell and Cowdy, Re, 519, 520, 534 Campbell v. Campbell, 152 Campbell, Wilson & Horne Co. v. Great West Saddlery Co., 596 Canada Trust Co. v. Strathroy, 597 Canadian Construction Co. Ltd. v. Beaver (Alberta) Lumber Ltd., 524 Canadian Credit Men's Trust Assn. v. Carman Block Ltd., 201 Canadian Fertilizer Co. & Canadian Industries Ltd., Re, 343 Canadian Oil Companies v. McManus Petroleums, 319 Canadian Silk Mfg. Co. Ltd. v. Badalato, 321 Carlson, Re, 50 Carmichael v. Dolmage and Macinnes, 195 Carnochan v. Carnochan, 110 Carpenter v. Smith, 558, 565 Carr and Smith, Re, 62 Carroll v. Dominion Coal Co. Ltd., 483 Carscallen v. Leeson, 267 Carson v. McMahon, 648 Carson v. Musialo, 622 Carter v. Grasett, 575 Carter v. Green, 323 Carter v. Irving Oil Co., 183 Carter v. Patrick, 49 Cartwright, In re, 426 Cartwright v. Cartwright, 161 Castellain v. Preston, 414 Cavalier v. Pope, 229 Chandler v. Gibson, 354 Charles Ogilvy Ltd. v. Larocque, 200, 326 Charlotte Park and Recreation Commission v. Barringer, 447 Chartered Trust Co. v. Trustees of the Estate of John Ross Robertson, 434 Chatsworth Estates Co. v. Fewell, 540 Chemarno v. Pollock, 279 Chernec v. Smith, 280 Cherry v. Petch, 604 Chevalier v. Trepannier, 72 Childs v. King, 201 Christie v. Clarke, 184 Chudyj v. Canada Permanent Mortgage Corp., 104

Cities Service Oil Co. Ltd. v. Pauley, 483, 502 Clapman v. Edwards, 149 Clarke v. Fitzpatrick, 325 Clarke v. Grant, 324 Clarke v. Kirkpatrick, 279 Clayton v. Corby, 608 Clayton v. Ramsden, 338 Clegg v. Hands, 491 Cleland v. Berberick, 589 Clerk v. Clerk, 391 Clifton v. Bury, 29 Coastal Estates Ltd. v. Dales, 325 Cobb v. Lane, 181 Cockburn, Re, 597 Cockburn v. Quin, 261 Coe v. Clay, 189 Cohen v. Godkin, 191, 192 Cohen v. Livingstone, 149 Coleman v. Foster, 145 Collison v. Letsom, 502 Coils v. Home and Colonial Stores Ltd., 575 Colonial Coach Lines Ltd. v. Nicholson, 200 Commercial Finance Corp. v. Dunlop Tire & Rubber Goods Co., 189 Conn v. Zostantos, 542 Connolly v. Coon, 180 Conquest v. Ebbetts, 255 Consumers' Gas Co. v. Toronto, 556 Cook v. Bath, 597 Cooper v. Franklin, 362 Cooper's Conveyance Trusts, Crewdson v. Bagot, Re, 59 Corbitt v. Wilson, 557 Cornish v. Boles, 200, 201 Courville v. Pretty, 324 Covered Markets Ltd. v. Green, 326 Cowan v. Ferguson, 540 Cowell v. Rosehill Race Course Co. Ltd., 144 Cowitz v. Siegel, 208 Craig, Re, 383 Craig v. Craig, 557, 597 Crane v. Blackadar, 388 Crate v. Miller, 125 Crawford v. Crawford, 386 Crichton v. Zelenitsky, 104 Cricklewood Property & Investment Trust Ltd. v. Leighton's Investment Trust Ltd., 287 Croft v. Lumley, 325 Croft v. Prendergast, 225

TABLE OF CASES

Crowther v. Cawthra, 49 Crozier v. Trevarton, 320 Cruse v. Mount, 225 Crusoe d. Blencowe v. Bugby, 200 Culverwell v. Lockington, 557 Cunliffe v. Brancker, 348 Cunliffe v. Goodman, 258 Cunningham, Re, 417 Cunningham-Reid v. Public Trustee and Underwood, 375 Currah v. Ray, 598 Currie v. Currie, 410, 426 Dalton v. Angus, 588 Daly and Vancouver, Re, 512 Darch, Re, 417 Darrell v. Tibbitts, 259 D'Arundel's Case, 32 Dashwood v. Magniac, 424 D'Augigney v. Brunswick-Balke-Collender Co., 270 Davey v. Christoff, 225 Davidovich and Mandel v. Hill, 279 Davis, Re, 276 Davis Estate, Re, 100, 417 Davis and Garnatz, Re, 281 Davis v. Davis, 402 W. Davis Ltd. v. Huntley, 125 Davison's Settlement, In re, 40 Dawson and Bell, Re, 608 Day v. McLea, 325 Delamatter v. Brown Bros. Co., 182 Denison, Waldie v. Denison, Re, 413 Denman v. Brise, 299 Denny, Mott and Dickson Ltd, v. James B. Fraser & Co. Ltd., 299 Derro v. Dube and Boulet, 161 Devaney v. McNab, 596 De Vault v. Robinson, 557 Devine v. Callery, 268 Devine v. London Housing Society Ltd., 229 Devine and Ferguson, Re, 326, 453 Dewar v. Goodman, 503 Dewhirst, Flowers, v. Dewhirst, Re, 69 Dixon. Re, 374 Dixon Estates, Re, 49 Doe v. Jesson, 645 Doe d. Evans v. Doyle, 28, 29 Doe d. Evers v. Challis, 369 Doe d. Freeman v. Bateman, 192

xiii

Doe d. Hanington v. McFadden, 28, 366 Doe d. Lloyd v. Passingham, 368 Doe d. Parsley v. Day, 190 Doherty v. Allman, 436 Dominion Atlantic Ry. Co. v. Halifax & South Western Ry. Co., 634 Dominion Bridge Co. v. British-American Nickel Corp. Ltd., 277 Donaldson v. Lapp, 572 Dorsey v. Dorsey, 72 Dougal v. McCarthy, 325 Douglass v. Murphy, 502 Drain, Nixon v. Drain, Re, 49 Drake v. Gray, 524 Drake v. Wigle, 421 Draper, Re, 50 Driscoll, Driscoll v. Driscoll, In re, 257 Drury v. Kent, 608 Duchman v. Oakland Dairy Co., 557, 564, 572 Dumpor v. Symms, 200 Dunbar v. Dunbar, 386 Dunn, Re, 49 Dunthorne and Shore v. Wiggins, 182 DuVernet v. Eisener, 566 Dwyer, Re, 409 Eastaugh v. Macpherson, 125 Eastern Construction Co. Ltd. v. National Trust Co., 29 Eastern Telegraph Co. Ltd. v. Dent, 208 Eastman v. Richards, 326 Edge v. Boileau, 217 Edge v. Stafford, 189 Edler v. Auerbach, 307 Edward H. Lewis & Son Ltd. v. Morelli, 320 Edwards v. A.-G. of Canada, 70 Edwards v. Bradley, 404 Edwards v. Fairview Lodge, 182 Egerton v. Esplanade Hotels (London) Ltd., 321 Egerton v. Massey, 346 Egmont's Trusts, In re, 417 Eker v. Becker, 121 Ellenborough Park, Re Davies, Powell v. Maddison, Re, 543 Elliot, Re, 405 Elliott, Re (Eng.), 337 Elliott, Re (Ont.), 369 Ellis v. Glover and Hobson Ltd., 277

xiv

TABLE OF CASES

Elliston v. Reacher, 533 Elwes v. Maw, 261 Emmett v. Quin, 490 Ernst v. Zwicker, 67 Errington v. Errington, 145, 181 Evelyn v. Evelyn, 49 Falleson v. Spruce Creek Mining Co., 180 Fanning, Re, 360 Farmer v. Livingstone, 631 Farmers Mutual Petroleums Ltd. v. Jackson, 104 Ferguson v. Craig, 319 Fergusson v. Public Utilities Commission of Dundas, 557 Ferris v. Ellis, 483 Festing v. Allen, 346 Fidler and Seaman, Re, 402 Field v. Field, 388 Field's Will Trusts, Parry-Jones v. Hillman, Re, 336 Fife v. Hrapko, 270 Finnegan v. Dzus, 642 Fish Meal Co. v. Nickerson, 276 Fishmongers' Company v. East India Co., 576 Fitzmaurice v. Board of School Trustees of Township of Monk, 338 Flannigan v. Wotherspoon, 376 Fleet, v. Fleet, 401 P. M. Fleming Ltd. v. Hadley, 319 Flynn v. Flynn, 102 Fodchuk v. Fodchuk, 104 Forgie, Re, 49 Forrest v. Howe, 614 Forseth v. Prudential Trust Co. Ltd. and Canadian Williston Minerals Ltd., 453 Foster v. Brown, 590 Foster v. Caldwell, 299 Foster v. Reeves, 186 Foster v. Robinson, 144, 319 Foster v. Royal Trust Co., 151 Foster v. Woolworth Co. Ltd. and Galloway, 588 Foster, Hudson v. Foster, Re, 491 Fox v. Hunter-Patterson, 126 Fox v. Jolly, 321 Franklin & Herschom Theatre Co. Ltd. v. Odeon Theatres of Canada Ltd., 582 Fraser-Brace v. St. John, 276

Fred Long & Sons Ltd. v. Burgess, 200 Freedman v. Mason, 76, 380 Freeman v. Camden, 483 French v. Harris, 281 Friedman v. Murray, 595 Fries v. Fries, 72 Friess and Friess v. Imperial Oil Ltd., 104 Fritz v. Frits, 402 Frost, In re, 349 Fuller v. Howell, 612 Gahagan v. Sisson, 614 Gamble, Re, 417 Gamble v. Rees, 459 Gape's Will Trusts, Re, 336 Garfinkel v. Kleinberg and Kleinberg, 572, 579

Garnham, In re, 353 Gasner v. Bellak Bros Ltd., 324 Gatz v. Kiziw, 620 Gaussen v. Whatman, 416 Gauthier, Re, 4 Gebhardt v. Saunders, 232 Gehler, Palmason, 186 Gibboney v. Gibboney, 128 GiII v. Lewis, 281 Giilies v. Bortoluzzi, 589 GiIIis v. Sewell, 79 Glegg, Re Latham. Ex parte, 320 Globe Land Co. v. Heaslip, 267 Going, Re, 337 Golisky v. Romanuik, 596 Goodenow v. Farquhar, 391 Gooderham & Worts Ltd. v. Canadian Broadcasting Corp., 245, 256 Goodman v. Saltash, 605 Gordon v. Gordon, 78 Gordon Mackay & Co. v. North American Life Assur. Co .• 589 Gotlieb v. Goldfarb, 279, 280, 281 Gough v. Wood & Co., 270,277 Gouk, Allen v. Gouk, Re, 45 Goulding v. Norwich Union Fire Ins. Society, 416 Gow and Downer, Re, 280 Gowan v. Christie, 284 Gower v. Postmaster-General, 502 Gracey. Re, 359 Grader v. Singer, 282 Grafton, Re, 42

TABLE OF CASES

Grand Hotel Co. v. Cross, 605 Grant v. Fuller, 61 Grant v. Grant, 381 Grant v. Rutledge, 326 Graves v. Weld, 419 Gray v. Richford and McConnell, 646 Greenwood's Agreement, Parkus v. Greenwood, Re, 21 I Greenshields Estate, Re, 49 Greiger v. Pye, 383 Greisman, Re, 101 Griffin v. Pillet, 229 Griffith v. Pelton, 496 Gross v. Wright, 592 Grossman v. Modern Theatres Ltd., 195, 201 Grumbacher v. Booster Nut Ltd., 326 Guthrie v. C. P. R., 543 Haanen v. Decker, 270 Haggart, Re, 49 Haggart v. Brampton, 270 Haig, In re, 61 Halifax v. Vaughan Construction Company, 447

Hall v. Alexander, 557 Hall v. Burgess. 320 Hall v. Campbellford Cloth Co. Ltd., 250 Hall v. Goslee, 383 Hall, Hall v. Hall, In re, 441 Halsall v. Brizell, 483 Hamilton, Re, 50 Hanbury's Settled Estates, In re, 435 Hancock v. Watson, 369 Hand v. Hall, 184 Hansard v. Hansard, 49 Hansen v. Franz, 459 Hanson v. Newman, 257 Harmer v. Jumbil (Nigeria) Tin Areas Ltd., 232

Harris v. Chesterfield, 608 Harris v. Keith, 620 Harrison v. Leopold (No. 2), 223 Harry v. Anderson, 459 Hart v. McMullen, 571 Hart v. Windsor, 224 Harvey, Harvey v. Hobday, Re, 410 Hatfield, Re, 51 Hayes v. Hayes, 542 Hayes' Estate, Re, 380

xv

Haywood v. Brunswick Permanent Benefit Building Society, 483 Hazell, Re, 29 Head v. Community Estates & Building Co. Ltd., 218 Heier, Re, 169 Heller v. Niagara Racing Assoc., 144 Hemmings v. Stoke Poges Golf Club Ltd., 50,324 Henderson v. Eason, 386 Henderson v. Northern Trusts Co., 50 Henderson v. Thorn, 257 Hersey v. Murphy, 389 Hewett, In re, 380 Hide v. Parrat, 369 Hill, Re, 95 Hill v. Barclay, 255 Hill v. Hicklin, 404 Hill v. Hill, 326 Hill v. Tupper, 130 Hilliard v. Beck, 490 Hilton v. Donais, 261 Hilton v. Tipper, 201 Hiltz v. Langille and Langille, 50 Hipkiss, Re, 634 Hirachand Panamchand v. Temple, 325 Hixon v. Reaveley, 423 Hobson v. Gorringe, 277 Hoffman v. Fineberg, 321 Hole, Re, 31 Holman v. Knox, 255 Holmwood and Hall, Re, 649 Homfray v. Homfray, 405 Honywood v. Honywood, 424 Hopkins v. Hopkins, 279 Hoppe v. Manners, 277, 278 Hopper v. Corporation of Liverpool, 52 Honnidge v. Magur, 217 Hornell, Re, 43 Horsey Estate Ltd. v. Steiger, 495 Hoskins v. Woodham, 225 Hotchkys, Re, 409 Houlder Bros. & Co. Ltd. v. Gibbs, 201 House Property & Investment Co. Ltd. v. James Walker, Goldsmith & Silversmith Ltd., 209 Hovey v. Trafton, 651 Howell v. King, 595 Howley Park Coal and Cannel Co. v. London & North Western Ry., 639

xvi

TABLE OF CASES

Hubbs v. Black, 166 Hudlin v. Ashley Colter Ltd., 648 Hulse, In re, 419 Humans v. Doyon, 126 Humphries v. Brogden, 639 Hunt v. Bishop, 331 Hunt v. Remnant, 331 Hunt and Bell, Re, 505 Hunter, Re (1947), 58 Hunter, Re (1954), 49 Hunter v. Doan, 414 Hunter v. Richards, 576, 584 (Earl of) Huntington and (Lord) Mountjoyes Case, 612 Hurley v. Roy, 380 Hurshman, Mindlin v. Hurshman, Re, 337 Hutcheson and Hutcheson, Re, 402 Hyman v. Rose, 255 Hyslop and Hyslop v. M. E. Walker Ltd., 144

Ihde v. Starr, 598 Industrial Molasses Corp. v. H. Corby Distillery Ltd. and Empire-Hanna Coal Company, 556, 597 lnterprovincial Pipe Line Co., In re, 166 Iredale v. Loudon, 636 Ireland v. Cutten, 625 Isaryk v. Isaryk, 388, 634 Israel v. Leith, 571 Jackson v. Laskers Home Furnishers Ltd., 258 Jackson Ltd. and Gettas, Re, 322 Jacobs v. Seward, 390 James v. Hutton and Cook & Sons Ltd., 257 James Jones & Sons Ltd. v. Tankerville, 608 Janisse v. Stewart, 401 Jayawardene v. Jayawardene, 200 Jeffery, Re, 374 Jenkins, Re, 95 Jennings v. Tavener, 225 Jinks v. Edwards, 189 Job v. Potton, 389 Johnston v. Givens, 221, 255 Johnston v. Steacy, 631 Jollow and Jollow, Re, 111, 403 Jolly, Gathercole v. Norfolk, In re, 650 Jones v. Herxheimer, 258 Jones v. Jones, 577

Jones v. Kline, 50 Jones v. McClean, 31 Jones v. Oklahoma City, 331 Jones v. Shears, 324 Jordan v. May, 275 Joss v. Uhryniuk and Stelmach, 589 Joyner v. Weeks, 257 Jung and Montgomery, Re, 212 Jupp, Re, 374 Kain v. Norfolk and Baker (Hauliers) Ltd., 596 Kamin v. Kirby, 279, 281 Kates v. Morrison, 384 Keewatin Power Co. v. Lake of the Woods Milling Co., 558 Kehoe v. Lansdowne, 261 Kelly v. Battershell, 238 Kelsen v. Imperial Tobacco Co., 29 Kempson, Re, 72 Kennedy v. Agricultural Development Board, 193 Kennedy v. De Trafford, 401 Kenny v. MacKenzie, 590 Keoughan v. Holland, 491 Keppell v. Bailey, 131 Ker v. Little, 567 Kerby, Re, 50 Kerr, Re, 381 Kerr v. Maxfield, 180 Kerrigan v. Harrison, 450 Keyes v. O'Brien, 459 King, The v. Cowichan Agricultural Society, 152 King v. David Allen & Sons Billposting Ltd., 146

King v. Evans, 359 King v. King, 388 King v. Smith, 650 Kingham v. Kingham, 417 Kingston Motor Car Co. v. Wright, 183 Kirby v. Cowderoy, 635 Kishen Singh, Cox v. Kaur, Re, 49 Klagsbrun and Stankiewicz, Re, 384 Kloepfer Wholesale Hardware & Automatic Co. v. Roy, 180 Knoll, Re, 95 Knowles v. Richardson, 555 Kokatt v. Melidonis, 426 Kowalski and Shoota v. Gale, 320

TABLE OF CASES

Kowbel v. The Queen, 70 Kraszewski v. Old, 125 Kroesing Estate, In re, 49 Kruciak v. Antoniuk, 324 Labone v. Litherland Urban District Council, 241 Lace v. Chandler, 121 Lacon's Settlement, In re, 414 Lacroix v. The Queen, 29 Ladies Hosiery & Underwear Ltd. v. Parker, 326 La Jeffries v. Roberts, 193 Lamb v. Cleveland, 70 Lambert's Estate, Stanton v. Lambert, In re, 72 Lampert v. Weber and Doyle, 502 Land Settlement Association Ltd. v. Carr, 326 Lane v. George, 557 Lane's Estate, Re 69 Lankin, Re, 534 Lapointe v. Cyr, 126 Laurie v. Winch, 542, 543, 596 Lawlor v. Lawlor, 66 Leach, Leach v. Leach, In re, 336 Leader Dress Co. Ltd., Re, 494 Leahy, Re, 102 Lee v. Branscombe, 49 Lee v. Gaskill, 266 Lee v. K. Carter Ltd., 208 Leeds v. Cheetham, 259 Leeds and Batley Breweries Ltd., Re, 326 Leeming v. Smith, 459 Lehman v. Hunter, 390,402 Leigh v. Dickeson, 392 Leigh v. Jack, 622 Leigh v. Taylor, 419 Leonard and Hall v. Crown Trust & Guarantee Co., 417 Leschallas v. Woolf, 266 Lesperance, Re, 87 Lethbridge Lodge No. 2, I. 0. 0. F. v. Afaganis, 121 Lewin v. American and Colonial Distributors Ltd., 503 Lewin v. Lewin, 49 Lewis v. Allison, 590 Lewis v. Baker, 180 Lewis v. Godson, 440

xvii

Limestone Electrical & Supply Co. Ltd., Re 201 Lindenmuth v. Safe Harbor Water Power Corp., 543 Linzon and Wolfish, Re, 184 Lippman v. Lee Yick, 199 Liscombe v. Maughan, 597 Lister v. Lane and Nesham, 245 Little, Ex parte, 520 Lloyds Bank Ltd. v. Dalton, 590, 596 Logan v. Campbell and Neely, 127 London v. John Labatt Ltd., 275 London and South Western Railway Co. v. Gomm, 450 London Cemetery Co. v. Cundey, 556 London County Council v. Allen, 502, 506 Lorne Park, Re, 535 Lowe v. Ross, 189 Lunenburg v. Lunenburg, 25 Lurcott v. Wakely and Wheeler, 245 Lutwich v. Mitton, 367 Luxford v. Cheeke, 346 Lynch v. Thorne, 225 Lyons and McVeity, Re, 326 Maas v. McMahon, 201 MacDonald v. Goderich, 229 Macdonald v. Macdonald, 404 MacKay v. Meikle, 614 MacKenzie, Re, 49 Macklem v. Cummings, 410 MacLean v. Valdemar, 244, 426 Macleay, In re, 336 Macpherson v. London Passenger Transport Board, 596 Magee v. Rankin, 200 Magill v. Young, 503 Mahone Oar & Block Works Limited v. Rector, 465 Malden Farms Ltd. v. Nicholson, 592 Mallot v. Wilson, 51 Manchester v. Dixie Cup Co. (Canada) Ltd., 184, 250, 432 Manchester Brewery Co. v. Coombs, 186, 494 Manchester Ship Canal Co. v. Manchester Racecourse Co., 455 Manor Farm, Kytes Hardwick, Acheson v. Russell, Re, 67 Maple Leaf Coal Co. Ltd., Re, 270

xviii

TABLE OF CASES

Marchischuk v. Lee, 614 Markham v. Paget, 212 Martin, Re, 127 Martin v. Larsen, 244 Martyn v. Knowllys, 391 Mason v. Clarke, 608 Mastron v. Cotton, 403 Matania v. National Provincial Bank Ltd., 217 Matheson v. Town of Mitchell, 337, 644 Mathewson v. Burns, 320 Maud v. Sandars, 245 Maynard and Regent Refining (Canada) Ltd., Re, 501 Mayo v. Leitovski, 413 McAleer v. Desjardine, 505 McBean v. Wyllie, 555 McBride v. McNeil, 152 McCaffery, Re, 50 McCallum Hill & Co. v. Imperial Bank of Canada, 201 McCarrick v. Liverpool Corp., 226 McColl-Frontenac Oil Co. Ltd. v. Hamilton, 104 Mccuaig v. Lalonde, 259 McCulloch v. McCulloch, 565 McCully, McCully v. McCully, Re, 402 McDonald v. Rudderham, 645 McEacharn, Re, 417 McEacharn v. Colton, 200 McEwen v. Ewers and Ferguson, 375 McGillivray v. Millin, 557 McGugan v. Turner, 635 Mcllmurray v. Brown, 584 McIntosh v. The Ontario Bank, 398 McIntyre v. Bird, 324 McIntyre v. Haynes, 651 Mciver Estate, Re, 49 McKay v. Bruce, 557 McKenzie v. McKenzie, 42 McKillop and Vancouver, Re, 512 McKinnon v. Lundy, 334 McLaren v. Coombs, 419 McLary v. Jackson, 490 McLaughlin, Re, 369 McLaughlin v. Bodnarchuk, 211 McLea, Re, 49 McLean, Re, 346 McLean v. Davis, 597 McMahon, Day v. McMahon, Re, 49

McManus v. Cooke, 151 McMaster, Re. 50 McNeely v. Carey, 181 McQueen v. The Queen, 631 McVity v. Tranouth, 648 Medaini, Re, 50 Melville, In re, 332 Mennig v. St. Andrews, 88 Merchants Bank v. Campbell, 383 Merkur v. H . Shoom & Co. Ltd., 299 Metropolitan Life Ins. Co. v. McQueen, 589 Midanic v. Gross, 598 Midland Railway Co. v. Wright, 639 Miles v. Easter, 513 Millard v. Gregoire, 42 Millbourn v. Lyons, 513 Miller, Re, 50 Miller Estate, Re, 50 Miller v. Emcer Products Ltd., 190, 215, 551 Miller v. Tipling, 26, 558 Milmo v. Carreras, 193 Milwarde-Yates, Re, 110 Minshull v. Oakes, 489 Mint v. Good, 229 Mitchell v. McCauley, 495 Mitchell v. The Mortgage Co. of Canada, 119

Mitchell Estate, In re, 417 Mitchell-Henry v. Norwich Union Life Ins. Soc., 279 Mitchelson v. Mitchelson, 402 Moffatt Estate, Re, 612 Moher v. Moher, 95 Mohl v. Senft, 156 Monro v. Toronto Railway Co., 426, 432 Montreuil v. Ontario Asphalt Co., 161 Moody v. King, 103 Moore v. Power, 42 Moore v. Rawson, 598 Moore v. Royal Trust Co., 337 Morgan v. Liverpool Corp., 229 Morris v. Cairncross, 427 Morrison v. Morrison, 402 Morrison v. Weller, 557, 572 Morrow v. Eakin, 402 Morton v. Snow, 557 Moser v. Barss, 59 Moule v. Garrett, 503 Mowat v. Martin, 208 Muller v. Trafford, 496

TABLE OF CASES

Mulligan v. Hendershott, 402 Munsie v. Lindsay, 388 Murcar v. Bolton, 402 Murphy v. Hurly, 229 Murray v. Hall, 389 Mus v. Matlashewski, 209, 502 Myers v. Johnston, 572 Mykel v. Doyle, 598 Naegele v. Oke, 541 Napier v. Williams, 391 National Trust Co. Ltd. v. The King, 257 National Trust Co. v. Lowthian, 634 National Trust for Places of Historic Interest or Natural Beauty v. Midlands Electricity Board, 533 Naylor v. Woods, 280 Neiman and Borovoy, Re, 102 Nelson v. Cook, 128 Nelson v. Nelson and Director, Veterans' Land Act, 104 Neuchatel Asphalte Co. Ltd. v. Barnett, 325 New Westminster v. Kennedy, 435 Newman v. Real Estate Debenture Corp., 238 Newmarket Lumber Co. Ltd., International Wood Products Ltd. v. Royal Bank of Canada, Re, 281 Newton Abbott Co-Operative Society Ltd. v. Williamson and Treadgold Ltd., 519, 529

Niles v. Lake, 404 Nisbet and Potts' Contract, Re, 505, 649 Niven, Re, 50 Noble and Wolf v. Alley, 338, 443 Noble Scott Ltd. v. Murray, 284, 320 Norman v. Ricketts, 279 Norman v. Simpson, 208 North, North v. Cusden, Re, 375 Northern Agency Ltd. v. Army & Navy Department Store Ltd., 597 Northern Broadcasting Co. Ltd. v. Mountjoy Improvement District, 275 Northwest Terminals Ltd. v. Westminster Trust Co., 268 Nuytten and Bakalaryk v. Stein, 209, 324, 325 Oak Property Co. Ltd. v. Chapman, 322 Oakville Investments Ltd. v. Dauphinee, 319

xix

O'Brien, Re, 383 O'Connor v. Foley, 503 Official Guardian v. Sadecki, 410 Ogal Estate, Re, 50 Ontario Power Co. v. Whattler, 403 Orr, Re, 275 Osterhout v. Osterhout, 369 Ottawa, Re, 557 Ottawa v. Munroe, 181 Ottawa v. Ottawa Valley Trust Co., 126 Owen v. Gadd, 217 Packer v. Gibbins, 287 Page v. Campbell, 511 Pain v. Dixon, 184 Paine & Co. Ltd. v. St. Neots Gas & Coke Co., 556 Palmer v. The King, 126 Pakenham's Case, 472 Parento and Parento v. Jacobsen, 460 Paradine v. Jane, 245 Paramount Theatres Ltd. v. Brandenberger, 184 Parent v. Drouillard, 100 Park v. Shell Oil Co. of Can. Ltd., 325 Parker v. Boggan, 208 Park's Settlement, Re, 353 Parks v. Hammond, 230 Patching v. Smith, 287 Paterson v. Zhilat. 326 Patterson v. Bignall, 558 Patterson v. Central Canada Loan and Savings Co., 425 Patterson v. De Smit, 614 Patterson v. Smith, 616 Payne v. Haine, 245 Pearsall and Pearsall v. Power Supermarkets Ltd., 596 Peck and Peck v. Veiner, 419 Pelis v. Brown, 367 Pembery v. Lamdin, 245 Penn, In re, 383 Pennington v. Crossley & Sons Ltd., 279 Perkins, Poyser v. Beyfus, Re, 280 Perrett v. Perrett, 321 Perrin v. Blake, 358 J. F. Perrott & Co. Ltd. v. Cohen, 155 Perry v. Clissold, 616 Perry v. Sharon Development Co. Ltd., 225 Pflug and Pflug v. Collins, 631

xx

TABLE OF CASES

Pharand v. Jean Louis, 598 Phillimore v. Lane, 246 Phillips v. Gillis, 49 Pickard v. Kemick, 596 Pidgeon, Re, 519, 535 Pimbe's Case, 365 Pinewood Estate, Farnborough, Re, 534 Piper v. Stevenson, 622 Piper, Dodd v. Piper, Re, 337 Pitman v. Nickerson, 605 Plant, Re, 69 Plant v. Woolfe, 184 Platt v. G. T. R., 459 Playter v. Lucas, 511 Plomley v. Felton, 66 Plummer v. Sloan, 50 Pole-Carew v. Western Counties Manure Co., 266 Poloniato v. Regina Macaroni Holding Ltd., 277

Pope v. Stevens, 104 Port v. Griffith, 238 (Mary) Portington's Case, 61 Post v. Bean, 607 Power v. Grace, 381 Precious v. Reedie, 123 Proudfoot v. Bush, 389 Proudfoot v. Hart, 245 Prudential Ins. Co. of America v. McLean, 280 Public Trustee v. Kirkham, 117 Pupkowski, Re, 384 Purchase v. Lichfield Brewery Co., 187 Purefoy v. Rogers, 347, 348 Purmal Brick Co. v. General Electric Co., 277 Quee v. Jany, 501 Queen's Club Gardens Estates Ltd., v. Bignell, 123 R. C. Episcopal Corp. of St. Albert v. Sheppard & Co., 184 Raab v. Smith, 558 Rabinovitch and Booth, Re, 503 Race v. Ward, 557 Radenhurst v. Coate, 557 Ramsbottom v. Snelson, 181 Ramsden v. Dyson, 151 Randall v. Russell, 369

Rayner v. Preston, 416 Reaume v. Lalonde, 189 Redmond v. Dainton, 245 Redpath v. Roberts, 320 Reeve v. Long, 345 Regis Property Co. Ltd. v. Redman, 220 Registrar of Titles v. Vancouver, 512 Regor Estates Ltd. v. Wright, 502 Reid v. Bickerstaff, 534 Rene v. Carling Export Brewing and Malting Company Limited, 439 Reynolds v. Ashby, 277 Rice, Re, 50 Rice v. Boston & Worcester Railroad Corp., 331 Rice v. George, 391 Rice Lake Fur Co. Ltd. v. McAllister, 605 Richardson v. Equitable Fire Ins. Co., 275 Richardson v. Graham, 597 Richardson v. Harrison, 359 Richter v. Koskey and Adler, 211, 324 Ricketts v. Enfield Churchwardens, 502 Ridd Estate, In re, 369 Rider v. Smith, 483 Right v. Darby, 325 Rimmer v. Rimmer, 114 Ring v. Pugsley, 577 Rist Estate, Re, 50 Roberts v. McMannis, 432 Robertson, Re, 409, 433 Robertson v. Robertson, 402 Robertson v. Tucker, 627 Robinson, Re, 88 Robinson v. Bailey, 596 Robson v. Wilson, 577 Robson, Douglass v. Douglass, In re, 355 Roche v. Allan, 592 Rogers v. National Drug & Chemical Co., 185, 475, 495 Roper v. Williams, 540 Rose, Re, 409 Rose v. Sharp, 195 Rosher, Re, 336 Rosse, Re, 50 Rotherham v. Green, 612 Routledge, Marshall v. Elliott, Re, 359 Rowan and Eaton, Re, 513, 519, 535 Rowe, Re, 78, 86 Ruetsch v. Spry, 572 Rumball v. Hoskings, 320

TABLE OF CASES

Ruptash and Lumsden v. Zawick, 395 Russell Transport Ltd. v. Ontario Malleable Iron Co. Ltd., 557, 585 Rutherford, Re, 417 Ryan v. Clark, 190 Ryerse v. Lyons, 287 Rymer v. Mcilroy, 542 Rystephaniuk v. Prosken, 557 St. Francis Hydro Electric Co. v. The King, 27 St. George Mansions Ltd. v. Hetherington, 225 Salisbury v. Gilmore and Marcel, 258 Salvin's Indenture, Pitt v. Durham County Water Board, Re, 543 Sambach v. Dalston, 367 Sammon v. Cawley, 324 Sampson v. Easterby, 502 Sandal v. Grand Union Holdings Ltd., 217 Saunders v. Breakie, 440 Scales v. Lawrence, 245 Scaltock v. Harston, 212 Schar, Midland Bank Executor and Trustee Co. v. Darner, Re, 51 Schop, Cliff v. Schop, Re, 50, 93 Schwann v. Cotton, 571 Second Church of Christ Scientist and Dods, Re, 540 Section 51, Land Titles Act (Grieve's Application), Re, 534, 535 Selick v. Moncton, 275 Serbu v. Feinstein, 324 Setter & Hurlbut v. Mander & Red-Man Oils Ltd .• 322 Shapiro v. Handelman, 320 Shaughnessy Heights Property Owners' Association v. Campbell and Campbell, 538 Shaw, Re, 49 Shayler v. Woolf, 489 Shelley v. Kramer; McGhee v. Sipes, 447 Shelley's Case, 358 Sherrett and Gray, Re, 375 Shey v. Chisholm, 366 Shields v. Dickier, 205 Shuter v. Patten, 78 Shuttleworth v. Le Fleming, 605 Sidebotham v. Holland, 123 Sidney Tp. School Board and McFarland, Re, 179

xxi

Sifton v. Sifton, 336 Sigsworth, Re, 50 Sikorski v. Hunter, 325 Sills, Tidy v. Merkur and Merkur, Re, 313 Silver v. Kelly, 122 Silverstein and Jonas v. Applebaum, 313 Simmons v. Crosley, 123 Simper v. Coombs, 299 Simpkins, Re, 95 Simpson, Re (N.S.), 67 Simpson, Re (Alta.), 358 Simpson v. Eaton, 575 Simpson v. Godmanchester Corp., 596 Sinclair v. McLellan, 620 Sinclair v. Mulligan, 28, 366 Sladden v. Smith, 644 Slaughter v. Taylor, 651 Smiley v. Townshend, 257 Smith, Re, 89 Smith v. City Petroleum Co. Ltd., 267, 278 Smith v. Curry, 557, 597 Smith v. Daly and Booth Lumber Ltd., 29 Smith v. Galin, 218 Smith v. Inland Gas & Oil Co. Ltd., 557 Smith v. The King, 631 Smith v. Kinsey, 495 Smith v. Marrable, 223 Smith v. Midland Ry., 651 Smith v. Ontario and Minnesota Power Co., 614 Smith v. Packhurst, 347 Smith v. Thackerah, 589 Smith v. Thomas, 184 Smith and Snipes Hall Farm Ld. v. River Douglas Catchment Board, 484 Smith's Lease, Smith v. Richards, Re, 208 Smyth v. Carter, 438 Snazel and Ding Pong, Re, 495 Soper v. Windsor, 651 Sorrente v. Rice and McColl-Frontenac Oil Co. Ltd., 567 Sotheby v. Grundy, 245 Sparkhall v. Watson, 209 Spelman v. Spelman, 388 Spencer's Case, 475 Spring v. Kinnee, 374 Sproule v. McConnell, 401 Stack v. T. Eaton Co., 265 Stackhouse v. Morin, 622

xxii

TABLE OF CASES

Stackhouse v. Wade, 651 Staddon, Re, 100 Stanton v. T. L. Herbert & Sons, 612 Startup v. Macdonald, 278 Stedman v. Smith, 389 Steers Ltd. v. Dakin, 226 Stevens, Re, 409,417 Stevenson v. Westgate, 612 Stewart, Re, 357 Stewart v. Murray, 359 Stone Estate, In re, 50 Stowell-MacGregor Corp. and John MacGregor Corp., Re, 338 Stranks v. St. John, 189 Strathblaine Estates, Ltd., Re, 344 Straus Land Corp. Ltd. v. International Hotel Windsor Ltd., 201 Stromdale and Ball Ltd. v. Burden, 491 Stuart v. Joy, 503 Stuart v. Taylor, 353, 644 Sullivan v. Dore, 255 Sun Oil Co. v. Coveart, 144 Sutton v. Temple, 224 Suwala v. Prociw, 324 Swan v. Swan, 128 Swanson v. Forton, 208 Swift v. Ambrose, 326 Switzer, Re, 336 Szuba v. Szuba, 404 Taltarum's Case, 61 Tannenbaum v. W. J. Bell Paper Co. Ltd., 255 Tanqueray-Willaume and Landau, Re, 367 Tate and Tate, Re, 110 Taylor, Re, 42, 359 Taylor v. Beal, 229 Taylor v. Townley, 635 Taylor v. Twinberrow, 649 Taylor, v. Waters, 145 Taylor v. Webb, 250 Tendler v. Sproule, 261 Teplitsky and Bookman v. 0 . E. Carson Ltd., 149 Thomas v. Hayward, 502 Thomas v. Sorrell, 129 Thompson, Re, 61 Thompson v. Baskerville, 322 Thompson v. British America Oil Co. Ltd.,

200

Thompson v. Leach, 347

Thomson and Norris Mfg. Co. v. Hawes, 232

Thorne v. Williams, 614 Thornley v. Thornley, 374 Thresher v. Company of Proprietors of East London Water Works. 266 Thuresson v. Thuresson, 645 Thurston v. Streilen, 459 Tichborne v. Weir, 503 Tierney, Re, 79 Todd, Re, 374 Todrick v. Western National Omnibus Co., 543, 556, 596

Tom v. Shofer, 278 Tomlinson v. Hill, 102 Toronto v. Jarvis, 557 Toronto and Stutchbury, Re, 564 Toronto Harbour Commissioners v. Royal Canadian Yacht Club, 440 Torosian v. Robertson, 572 Trerise v. Evanocke, 121 Trust & Loan Co. v. Ruttan, 459 Trustee of Publix Oil and Gas Co. v. Hinds, 193

Trustees of Hollis' Hospital and Hague's Contract, In re, 332 Trusts and Guarantee Co. v. The King, 28 Tucker, Re, 102 Tuckett, Re, 417 Tulle v. Metropolitan Board of Works, 505 Tulk v. Moxhay, 503 Tully and Klotz, Re, 383 Turner v. Wright, 435 Turnbull Estate, Re, 369 Turta v. C. P.R. and Imperial Oil Ltd., 640 Tyrrel's Case, 367 Tyrringham's Case, 612 U. S. v. Causby, 29 Ucci v. Livingstone, 324 Uniacke v. Dickson, 28 Union Lighterage Co. v. London Graving Dock Co., 587 Union of London and Smith's Bank Limited's Conveyance, Miles v. Easter, Re, 513 Uniproducts (Manchester) Ltd. v. Rose Furnishers Ltd., 229 United Motors Service v. Hutson, 245, 259, 427

TABLE OF CASES

Urbach v. McClarty, 280 Vair, Re, 409 Vair and Doyle, Re, 42 Van Alstyne v. Ruck, 596 Vancouver v. Registrar, Vancouver Land Registration District, 512 Vancouver Breweries Ltd. v. Dana, 299 Van Grutten v. Foxwell, 358 VanKoughnet v. Denison, 540 Vasiloff v. Johnson, 391 Vaughan v. Vaughan, 114 Vernon v. Smith, 502 Vicker's Lease, Pocock v. Vickers, Re, 605 Victor v. Lynch, 226 W., Re, 50 Wade v. Wade, 634 Walker, Re, 50 Walker v. Allen, 49 Walker v. Hennigar, 577 Walker v. Walker, 28 Wallace and Bremner, Re, 534 Wallis v. Hands, 180, 190 Wallis v. Hodson, 50 Walsh and Sovis, Re, 79 Walsh v. Lonsdale, 184 Walsh v. Walper, 494 Waring v. King, 325 Warner v. Foster, 277 Warren v. Keen, 241, 432 Warren v. Yeoll, 624 Warwick's Settlement Trusts, In re, 410 Watson v. Jackson, 577 Watts v. Watts, 402 Weaver, Re, 49 Webb v. Bird, 588 Webb v. Frank Bevis Ltd., 278 Webb v. Paternoster, 145 Webb v. Russell, 477 Webb, Sandom v. Webb, Re, 558 Weeks and Toporowski v. Rogalski, 162 Weeton v. Woodcock, 266 Welch and Welch v. White and Brezden, 490 Wells, Re, 344 West v. Hughes, 534 West and West v. Barr, 121 West Canadian Collieries Ltd. v. Rinaldi, 270 West Ham Central Charity Board v. East London Waterworks Co., 441

xxiii

Westminster v. Swinton, 261 Westminster Bank Ld. v. Lee, 114 Wetzel v. National Trust Co., 50 Wheeler, Re, 513,534 Wheeler v. Mercer, 125 Whimbey v. Hyde, 72 Whitby v. Mitchell, 351 White, Re, 381 White v. Bijou Mansions Ltd., 491, 534 White v. Grand Hotel Eastbourne Ltd., 596 White v. Summers, 354 White v. White, 410 White Estate, Re, 50 Whitehead v. Whitehead, 648 Whitehouse v. Hugh, 534 Whitesell v. Reece and Payne, 424 Whittaker v. Goggin, 280 Whyte v. Davey, 78 Wiggins, Re, 95 Wild's Case 61 Wilkinson v. Benedict, 279, 495 Wilkinson v. Haygarth, 391 Wilks, Child v. Bulmer, In re, 381 Williams v. James, 595 Williams v. Unit Construction Co. Ltd., 490 Williams Bros. Direct Supply Stores Ltd. v. Raftery, 622 Williams, Tucker v. Williams, In re, 360 Wilson v. Flynn, 208, 209 Wilson v. Whelpley, 409 Wilson, MacKay and Wortman v. Bulmer, Re, 49 Wimbledon & Putney Commons Conservators v. Dixon, 596 Wimmer v. Wimmer, 104 Winbaum v. Ginou, 280 Winbaum v. Zolumoff and Zolumoff, 228 Winter, Re, 50 Winter v. Brockwell, 145 Winter Garden Theatre (London) Ld. v. Millenium Productions Ld. , 135 Wisbech St. Mary Parish Council v. Lilley, 321 Wolf v. Thurm, 268 Wolfe v. McGuire, 427 Wolverhampton Corp. v. Emmons, 255 Wood v. Lake, 145 Wood v. LeBlanc, 648 Woodall v. Clifton, 501 Woodall v. Gusa, 319

xxiv Woodrow v. Connor, 590 Woods, Re, 358 Woods and Arthur, Re, 78 Woodward, Re, 358, 359 Wright, Re, 200 Wright v. Dean, 502, 503 Wright v. Macadam, 571 Wright and Fowler, Re, 42 Wulff v. Lundy, 192 Y. M. C. A. v. MacDonald, 228

TABLE OF CASES

Yakchuk v. Holgate, 189 Yarmie v. Panchyshyn, 45 Yates v. Dunster, 257 Young v. Bank of Nova Scotia, 326 Young v. Kinnis, 104 Young v. Van Beneen, 211 Younghusband v. McRae, 584 Yukon Trust Co. v. Popich, 320 Zetland v. Driver, 520 Zierler, Re, 534

CASES AND NOTES ON LAND LAW

INTRODUCTION A PERSON embarking on legal studies is bound to be impressed by two features of the land law of Canada's common law provinces: first, its long history and consequent early emergence (compared with other branches of law) as a relatively well-formed and compact body of law; and secondly, its terminology. Land law as treated here is only part, albeit a significant part, of the more embracive law of property. As a basic institution of society, property has been variously analyzed, justified and explained by philosophers, political scientists, sociologists, economists and lawyers; and as a concept, it has undergone constant evolution, from being regarded as, largely, a mere tangible to a more refined appreciation that it is a cluster of values related to, or an expression of, the kind of society that recognizes them and the kind of legal system that protects them. The central place that land occupied in early thinking and legal concern with property needs no elaboration. As an object or thing that gave rise to a system of relations governing its acquisition, use and disposition, it also threw off "values" that had no tangible character and some of which were defined as "incorporeal" in contrast to its own corporeality. The easy confusion between a thing and the legally protected interests in it showed the need for a more exact terminology (especially when those interests began to multiply), lest analysis and evaluation should bog down in a semantic swamp: see, for example, the attempt at an exact vocabulary in the Restatement of Property, vol. 1, chaps. 1 and 2. Because our land law in Canada (excluding Quebec) is still marked by its English originseven more so than the present English law-and because much of it is intelligible only in the light of its history, it will be useful to begin study of the subject by summarizing its historical foundations. A brief explanation may be made at this point of the scope of the expression "land law". It is intended to cover not only what is usually subsumed under the title "real property" law but also "landlord and tenant" law. In the inherited English development, the forms of action determined the classification of interests in land, and real property was distinguished from personalty according to whether an action was or was not available for specific recovery of the subject matter of the litigation. On this basis, leasehold interests were classified as personal property, although even before the end of the fifteenth century the remedy of specific recovery became available for such interests. Additionally, the leasehold was used for investment purposes, to some extent to escape the church's prohibition of usury; and the essentially contractual relationship of landlord and tenant distinguished this system of landholding from the feudal real property system. English law thus rejected the civil law distinction between immovables and movables. Important consequences ensued from the division of real and personal property. Before the modern enactments on intestate succession, real property descended to the heir (under the primogeniture principle of the common law) and personalty descended to the intestate's personal representative, i.e., the administrator appointed by the court, who was, of course, obliged to dear with it according to the law of succession. In testate devolution a leasehold as personalty could be bequeathed at a time when a will of real property was still prohibited. Even today, where a testator in merely general terms leaves his real property to one beneficiary and his personalty to another, any leaseholds he held will go to the beneficiary of the personalty. Modern legislation, as, for example, in Ontario, now provides that upon a person's death, whether testate or intestate, all his real and personal property shall go to his personal representative (executor or ad-

4

CASES AND NOTES ON LAND LAW

ministrator) in trust for the persons by law beneficially entitled thereto : see Devolution of Estates Act, R.S.0. 1960, c. 106, section 2; see for a similar provision Devolution of Real Property Act, R.S.A. 1955 c. 83, sections 3 and 4; Devolution of Estates Act, R.S.M. 1954, c. 63, section 17; Devolution of Estates Act, R.S.N.B. 1952, c. 62, section 3; Devolution of Real Property Act, R.S.S. 1953, c. 118, sections 4 and 5. These provisions are related to the administration of estates and leave the dichotomy of realty and personalty unaffected in substance; see, for example, the problem raised in Re Gauthier, [1944] O.R. 401, [1944] 3 D.L.R. 401, on whether a mortgagee's estate in mortgaged land is, on his death, personalty or realty and whether the right to the mortgage money is personalty; and see Annotation by Dr. J. D. Falconbridge, [1944) 3 D.L.R. 405. The distinction between realty and personalty exists not only on the level of estates in land but also in respect of interests such as an easement which is realty or personalty according to the nature of the dominant tenement to which it is appurtenant. Moreover, interests such as easements and profits a prendre may be created either as descendible interests or for a term of years only. [On the institution of property, which has a vast literature, see Cohen, Property and Sovereignty, (1927) 13 Cornell L. Quarterly 8; 1 Powell, Real Property, chap. 2.]

CHAPTER I

HISTORICAL BACKGROUND 1. THE FEUDAL SYSTEM

A CONVENIENT STARTING POINT for examination of the foundations of land Jaw is the Norman Conquest in 1066 which gave England a distinctive feudalism, as elaborated below. For a general discussion, see Stenton, English Feudalism; 1 Pollock and Maitland, History of English Law, 2nd ed., pp. 64-73, ·229-406; Plucknett, Concise History of the Common Law (1956, 5th ed.), pp. 506-545. POWELL, REAL PROPERTY (1949) § 17.

The Conquest as the point of beginning.

It is said above that at the time of the Conquest two great river systems of the past joined forces. The cultural inheritances grouped together in the forces of the invading William came to live, and eventually, to mingle, with the ways of life which had grown in the preceding centuries on the island of Great Britain. The Britons, Celtic in ancestry and occupying all of Great Britain down to the fifth century A.D ., remained largely unaltered by Roman influence during the four and a half centuries of Roman military occupation (55 B.C. to 407 A.D.). The invading hordes from Jutland, from the Danish islands, and from the northern central parts of modern Germany were not as tolerant as the Romans had been. They came in waves. The earliest were Jutes (449). Then followed wave on wave of Angles and of Saxons over a period of three hundred fifty years (450-800). Two more centuries of victorious Danish immigration occurred. As a result the Britons were gradually pushed back into the rugged areas of Wales, across protecting waters into Ireland and, to a lesser degree, into the fortresses of Scotland. The Britain of modem times had become the land of the Angles, Saxons, Jutes and Danes. The law of these new peoples was one derived from northern central Europe with almost no Celtic or Roman ingredients. The importance in this law of the concept of the "folk" has been well stressed by Jolliffe. "As tribalism is more or less clearly seen to be the age when kindred and the blood-tie govern society, as feudalism is that when land-right determines privilege, duty and status, so this is the era of the folk, an era in which the nations have ceased to wander and settled life begins to enforce the lesson that society has other ties than common blood, yet before agriculture and its gains begin to breed the conviction that a man's social and political virtue is drawn from the land he holds." Looseness and impermanence of grouping and diversity of law from place to place were characteristic of the Anglo-Saxon society. Herein one finds the amazing power of rules derived from local customs to survive the centuries of feudalism and to persist even in our present law. Three modes of land holding appear to have had considerable recognition. Land held by "bookright" had its qualities fixed by the written charter or "book", given usually by the king to some church order or dignitary. Land of private persons, held on terms fixed by the customs of a community, was spoken of as "folkright". The church and some of the most land-wealthy persons loaned out land for periods often measured by lives, in return for agreed services. Such land was desig-

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nated as "laen-land". These types of land interests affected only a small percentage of those constituting the Anglo-Saxon society. Concerning the law operating as to the masses we know too little to make statements of present significance. As Jolliffe has said: "One thing only is clear, that the English peasantry moved across the line of the Conquest in every state of dependence and independence, status and relation to the state .... "We cannot guess the future of the society had it been left to work out its own fate. On the eve of the Conquest its bent was not fully decided. It was territorialized, but not feudalized . It had lordship but not tenure; its nobles by blood had died out and its official notables had yet to be recognized as a nobility. If ever it had reached the phase of feudalism it would have done so but slowly in the absence of foreign intervention. It is possible that, since it had already made the transition from the tribal to the territorial state and developed a stable local administration, a strong succession of native kings might have guided it to become a kingdom of the Scandinavian type, but with greater stability, a more closely knit community, and a more complex government. If the successors of Harold had failed in leadership the kingdom of England could hardly have survived, and the Humber and Thames might again have become national boundaries; normal ability in its kings would probably have kept the united kingdoms one. Thus the groundwork of a nation state had been laid, perhaps more truly than in any Continental kingdom. It remained for the Normans to engraft into the community the endurance of the fees and honours, ultimately strengthening the fabric of society though perhaps at some sacrifice of variety and energy, and to elaborate the court and household of the king into a judicial and fiscal machine which made a new chapter in the history of government. And with this we enter upon a third and well-defined phase of English history." William brought with him from the Continent a relatively small group. This group, however, included persons of substantially different backgrounds. Stenton in his book on English Feudalism, 1066-1166, describes their diversities thus: "The Normans brought with them a tradition of centralization which, however often it might be broken by individuals, determined the general character of English feudalism. But the Normans formed only one of the elements from which English feudal society arose. In 1086, men bearing names derived from places outside the Norman border appear in every part of England. It is not always realized how greatly their presence must have complicated King William's essential task of bringing all his followers into the same general scheme of feudal relationships .... "The lands to the east of Normandy had supplied many knights to the army of the Conquest, and lords from Flanders, Picardy, and the Boulonnais can easily be traced in Domesday Book. Their settlement had begun early .. .. But in the eleventh century, Flanders like Normandy was a highly developed feudal state, and there can have been little in Norman custom which would seem strange to the average Flemish knight. The settlement which really complicated the first phase of English feudalism came from Brittany. There had been a large Breton contingent in the army of Hastings. The Bretons formed one of the three divisions in which it advanced against the English position, and many Breton lords received land in England .... "Little can be said in definite terms of the society which had been familiar to the Breton followers of the duke of Normandy. Contemporary records are few, and those which have survived are rarely as explicit as we could wish. Nevertheless, enough material has been preserved to show a fundamental difference between Breton and Norman feudalism at this date. The whole history of Brittany shows that the duke's authority was small when measured by Norman standards .... But the differences between Breton and Normandy society lie deeper. In the eleventh century, Breton knighthood was essentially a personal distinction, a mark of social status rather than a qualification for military service. Feudalism itself was an exotic institution in Brittany, imposed upon a society which in 1066 was still Celtic in character and in much of its organization. The evidence which comes from this time shows a most curious blending of Celtic and feudal ideas."

IDSTORICAL BACKGROUND

7

So the date of the Conquest provides a time at which two diverse lines of history met for mixing. It gives us, therefore, a convenient moment of time at which to begin this brief review of the evolution of the law of land tenure. § 18.

Factors influencing consequences of the Conquest.

It is always difficult to project one's present experience back into a society so superficially different as that of the eleventh century. Yet men have not greatly changed in the intervening period. Desires and motivations are largely identical now with those which existed then. Thus it is important to realize that the Norman expedition into England was substantially an eleventh century counterpart of several movements which have been happening in recent decades. During the past seventy-five years many American corporations have expanded the areas contributing to their profits so as to cover the whole of continental United States and many areas beyond these confines. These corporations have often been the product of the initiative and push of one man, as for example, John D. Rockefeller or George Eastman. The spread of such au enterprise has been typically marked by the absorption or extinction of competitors, a growing domination of the sources of needed materials and a control of the channels of distribution of the finished product. The ambitious, somewhat ruthless seeker of power in the eleventh century became a William the Conqueror. His modern human equivalent sometimes sought an outlet for his energy as the organizer of some tremendous business enterprise. Another analogy which helps toward an understanding of William's problems and conduct is the modem political boss. William had to have the support of many persons to organize and to execute the invasion of England. With Hastings won, he needed the continued undivided loyalty of these henchmen-and of many more. The modern political boss who has won one election but hopes to win more, and who distributes the available patronage as a reward for past service and as insurance of future support is merely a modem counterpart of William after his military success at Hastings. Further close analogies are obviously found in the activities of Germany during the first two or three years of World War II. Thus the consequences of the Conquest were dictated in no small degree by the underlying ever modern seeking of power through the ruthless using of what is available to attain what is desired. Other factors which played important roles in determining the consequences of the Conquest were the small number of William's army and the difficulties of transport from the vicinity of Hastings into the interior of England. Caution, slowness of penetration, replacements only of top Anglo-Saxons by Normans, so that the mass of the population were largely unaffected by-or even perhaps unaware of the change of masters, became the necessary and the adopted modes of procedure. §

19.

Land as the medium of life.

As William exploited the gains of his military victory, substantial quantities of land came within his power of disposition. The Saxon king and many of the important Saxon land holders died at Hastings. Successive efforts at "rebellion" against the spreading lava flow of Norman power resulted in further Saxon deaths. The lands formerly dominated by the Saxon king and by his henchmen became "forfeited" and William (with his group) could designate good Normans to step into the vacated positions of land control. Furthermore, as Norman power entered more deeply into England's interior, the process of "commendation" became a new source of land control. Anglo-Saxon persons of importance, recognizing the irresistible approach of the alien foe, sought to salvage something from the wreckage. This was done by seeking out the Normans and agreeing to accept some Norman as "overlord", under whom the Saxon would retain what he had had, less, of course, what he had to pay as tribute to his

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new overlord for protection. Thus by the continuing processes of forfeiture and commendation, disposition of land domination became the wherewithal-the wealth-with which William and his followers must obtain the satisfaction of their needs for subsistence and of their desires for a richer life. § 20.

Norman needs as moulders of the land tenures.

An examination of the known facts as to the circumstances in which William and his followers found themselves in the period immediately after 1066 reveals that they must have been keenly aware of four basic necessities. Their military manpower needed to be substantially increased. Fighting was to be expected and the surest route to speedy domination of all England was in an overwhelming number of soldiers. Their stomachs neened recurrent fillings and their backs required clothing and equipment. As their retainers increased in number these needs would grow greater. Their lives were anomalous combinations of acceptance and belief in God and of daily lives which included murder, robbery, rapine and other mortal sins. They felt deeply and seriously the need for safeguarding their ultimate destinies by securing the intercession of the Church on their behalfs. Lastly they were a small group seeking to dominate a much more numerous native populace. They must have realized (as the later English did in India) the psychological effectiveness of maintaining establishments and personal entourages which spoke of strength. Incidentally the rigors of current life would be considerably lessened by such contributions to relative luxury. So perhaps we can designate the four fundamental needs of the Norman groups as safety, subsistence, salvation and splendor. The four types of land grants, utilized by William and his group in consolidating their position in England, correspond exactly to these four needs. Military tenure provided the armed forces. Socage tenure provided the agricultural products essential to the continuance of life. Frankalmoign tenure made certain the intercession of the Church for the welfare of the giver's soul. Serjeanty tenure provided the serviential retinue of ostentatious living. Our modern law of land has grown chiefly from the socage root but some aspects of the other tenures deserve attention because of the illumination so derivable as to the processes in the evolution of law. § 21.

The general structure of tenure.

In the distribution of the available land spoils the King graciously recognized the past loyalty and helpfulness of his important followers by allocating to each control over substantial areas of the land acquired from Saxons by forfeiture or commendation. These men, in turn, parcelled out the large tracts so acquired, into smaller tracts which were given as rewards to their personal followers. The process was repeated in a descending scale until the actual user of the land was reached. Each such grant created a relationship of lord and tenant, in which the lord agreed to protect the tenant and to safeguard his land holding in return for an agreed service to be rendered by the tenant to the lord. Each such relationship included recurrent incidents which gave economic returns from time to time to the lord. Systematized by 1100, or shortly thereafter, the system of tenure resembled roughly a pyramid with the King at the apex. Immediately beneath him were the "tenants in capite" who were almost exclusively Normans. Beneath these, in turn, were the "mesne" or intermediate, tenants who became less Norman and more Saxon as the rungs of the ladder down from the King became more numerous. At the bottom of the land owning class was the tenant paravail. This last character was described as "seised in demesne" while intermediate and top tenants were said to be "seised in service".

HISTORICAL BACKGROUND

§

22.

9

Military tenure-Origin of incidents.

Grants of land in return for the furnishing of some military service were common both in the Germanic background of the Anglo-Saxons and also in the continental background of William's followers. In these preludes to feudalism, chieftain and man had a relation characterized by intimacy and mutual good will. Subordination existed more for the common good and general defense than for the aggrandizement of the chief. In that early atmosphere of close personal loyalty one must look for the beginnings of those aspects of English military tenure which became known as its "incidents". The incidents of military tenure which found their roots in this relationship of personal loyalty-in addition to the core of military servicewere the aids, the control of wardship and marriage, the fines on alienation and the requirements of attornment, the lord's duties of warranty and defense and the ceremonial practices of homage and fealty. When a tenant died he ceased to be able to provide his strong right arm for the battles of his lord. Just as wages or salary cease with death today, so the grant of land made in consideration of military service ended on the tenant's death in the early years of feudalism. If some son or other relative of the deceased tenant succeeded in convincing the lord that he would be a good substitute for the deceased, he might receive from the lord a regrant of the land previously had by the deceased. The regrant on death was a favor given if, but only if, the lord chose to select the new person as his tenant. From this background originated the payment of relief, a sum paid by the new person to the lord to help the lord's judgment to incline in favor of the claimant. Also out of the same matrix came the primer seisin payment for the same purpose required of a tenant in capite. Obviously, if the deceased left no close relative to claim the privilege of a regrant the land became the lord's to do with as he chose, that is, it escheated. Thus the details of military tenure all trace back to two ideas or facts in the backgrounds of our English ancestors. They arose either out of the original relationship of intimacy and personal loyalty between chief and follower or from the regrant on death being thought of as a favor which the lord had the power to grant or to refuse. § 23.

Military tenure-Factors affecting evolution of incidents.

Three pairs of conflicting interests provided the media for the development of land Jaw out of tenurial grants. The lord would naturally seek to get as much as possible from the tenant in return for the land given him and the tenant would seek to part with as little as was necessary, so that he would have the more left for himself. In this struggle of self-interests between lord and tenant there gradually emerged a defined scope of current and recurrent duties and benefits. As has been indicated above when a tenant died, the lord wished to be wholly free in his further dealings with this land, so that he could make as advantageous a new deal for himself as might be possible. But children and relatives of the deceased wished to retain whatever advantages had been connected with the tenancy of this land. Thus the adverse interests of lord and heir of the tenant reached a compromise known to modern law as the Jaw of inheritance of land. The third pair of opposed interests were those of tenant and his heir. The tenant might well desire to have full power of disposition of his tenancy. If, however, the tenant had, and exercised this power nothing would remain for the heir to inherit. So the extent of the freedom of alienation represents the final adjustment reached in the opposed interests of tenant and his heir. Thus the law of land has come to us largely as a composite of the ultimate adjustment of the struggle between lord and tenant as to current duties, between lord and tenant's heir as to the right of inheritance and between tenant and tenant's heir as to the extent of freedom of alienation.

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CASES AND NOTES ON LAND LAW

A second factor affecting the evolution of the incidents of military tenure is one which affects the evolution of all law. A relationship which starts in a voluntary response to a seen need gradually crystallizes into a detail of more or less clearly defined duties and obligations. As parties to the relationship are either niggardly in their doing or ruthless in their demanding, lines are drawn to which parties must conform. Thus the decades following 1066 illustrate this common emergence of folkways into rules of increasing definiteness. A third factor which had particular importance in this particular branch of the law was the economic decrease in the purchasing power of money. To whatever extent the processes causing the crystallization of duties as between parties to a land tenure, caused those duties to be commuted into money payments of so many shillings (or other money units), the duties so commuted were destined to diminishing significance as the purchasing power of money decreased with the growth of trade. To whatever extent these duties became defined in terms of units which altered along with the changes in the purchasing power of money, these duties were likely to continue to be important aspects of land law. § 24.

Military tenure-Some of its characteristics.

This book has no place for a detailed discussion of the evolution of all the incidents of military tenure. It must suffice to trace some only of these evolutive processes, thereby finding some beginnings of present law and some outstanding instances of the processes by which law changes. The basic duty in military tenure was to render military service. But for how long? and where? within England? on the Continent? To the extent that the duration of this service became accepted as forty days, the army so recruited was of little value for a campaign across the Channel where most of the battles had to be waged. So it can perhaps, be said with fair accuracy that for the first century (1066-1166) military tenure really was accompanied by the rendition of military service by tenants to lords but there was little or no law defining the scope or character of the service thus requirable. During the next century the practice developed of substituting a money payment-