Barthel v. Scotten, , 24 S.C.R. 367 (1895)

Extract

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Barthel v. Scotten, , 24 S.C.R. 367 (1895)

Supreme Court of Canada

Barthel v. Scotten, 24 S.C.R. 367

Date: 1895-05-06

Adolphe Barthel (Defendant) Appellant;

and

Daniel Scotten (Plaintiff) Respondent.

1895: March 23, 25; 1895: May 6.

Present: Sir Henry Strong C.J., and Taschereau, Gwynne, Sedgewick and King JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Construction of deed-Conveyance of land-Uncertain description-Evidence of intention-Verba fortius accipiuntur contra proferentem-Application of-Patent ambiguity.

A grant of land bounded by the bank of a navigable river, or an international waterway, does not extend ad medium filae as in the case of a non-navigable river.

If in a conveyance of land the description is not certain enough to identify the locus it is to be construed according to the language of the instrument, though it may result in the grantor assuming to convey more than his title warranted.

The intention of the parties to a deed is paramount and must govern regardless of consequences. Res magis valeat quam pereat is only a rule to aid in arriving at the intention and does not authorize the court to override it.

A general description of land as being part of a specified lot must give way to a particular description by boundaries and, if necessary, the general description will be rejected as falsa demonstratio.

Where there is an ambiguity on the face of a deed incapable of being explained by extrinsic evidence the maxim verba fortius accipiuntur contra proferentem cannot be applied in favour of either party.

Where a description is such that the point of commencement cannot be ascertained it cannot be determined at the election of the grantee.

APPEAL from a decision of the Court of Appeal for Ontario[1], reversing the judgment of the Division...

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