Bailey v. Stonehouse et al., (2014) 345 N.S.R.(2d) 12 (CA)

• Judge: Fichaud, Beveridge and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 21, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 345 N.S.R.(2d) 12 (CA);2014 NSCA 50

Bailey v. Stonehouse (2014), 345 N.S.R.(2d) 12 (CA);

    1092 A.P.R. 12

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.045

William Daniel Murphy Stonehouse (appellant) v. Julie Angela Bailey and Marie MacQuarrie (respondents)

(CA 411231; 2014 NSCA 50)

Indexed As: Bailey v. Stonehouse et al.

Nova Scotia Court of Appeal

Fichaud, Beveridge and Bryson, JJ.A.

May 21, 2014.

Summary:

Neighbouring landowners (Bailey and Stonehouse) each claimed title to a road that divided their properties. A 1927 deed from Packard conveyed land to Baillie "excepting thereout the right of way or road extending from the lands of said Donald Sutherland to the Public highway aforesaid". Bailey argued that the conveyance included the fee simple in the road (i.e., merely recorded a previously established right of way in favour of the Sutherland property). Stonehouse argued that the deed unambiguously excluded the road from the conveyance, reserving title to Packard. Stonehouse purportedly obtained title to the road by way of a quit claim deed from one of Packard's descendants (MacQuarrie). Bailey applied to set aside the quit claim deed as invalid and sought a declaration that Stonehouse had no fee simple interest in the road.

The Nova Scotia Supreme Court, in a judgment reported (2012), 334 N.S.R.(2d) 9; 1059 A.P.R. 9, allowed Bailey's application. On its face, the wording of the 1927 deed supported Stonehouse's interpretation. However, extrinsic evidence revealed a latent ambiguity as to the meaning of "excepting thereout". The evidence supported an interpretation that the 1927 deed conveyed title to the road to Baillie. Accordingly, Stonehouse could acquire no interest in the road by way of MacQuarrie's quit claim deed. Whether Stonehouse had a right to use the right of way by way of prescription was not addressed by the court. Stonehouse appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Deeds and Documents - Topic 2527

Operation and interpretation - The property conveyed - Latent ambiguity in description of property - Neighbouring landowners (Bailey and Stonehouse) each claimed title to a road that divided their properties - At issue was the interpretation of a 1927 deed which conveyed land "excepting thereout the right of way or road extending from the lands of said Donald Sutherland to the Public highway aforesaid" from Packard to Baillie - Bailey argued that the deed included the road in the conveyance - Stonehouse argued that use of the words "excepting thereout" made it clear that the road was retained by the grantor, and that he obtained title to the road by way of quit claim deed from one of the grantor's descendants - The trial judge held that on its face, the use of "excepting thereout" supported Stonehouse's interpretation (i.e., no patent ambiguity) - However, extrinsic evidence revealed a latent ambiguity as to the meaning of "excepting thereout" - The evidence supported an interpretation that the 1927 deed conveyed title to the road to Baillie - "Excepting" was distinct from "reserving" - The deed referred to excepting the "right of way or road" - A right of way could not be "excepted" from a conveyance - Accordingly, since the grantor did not retain title to the road, the quit claim deed from the grantor's descendant could not convey any interest in the road to Stonehouse - The Nova Scotia Court of Appeal agreed with the trial judge's interpretation.

Deeds and Documents - Topic 2562

Operation and interpretation - Interpretation - Generally - Meaning of words in a deed or document - [See Deeds and Documents - Topic 2527 ].

Deeds and Documents - Topic 2563

Operation and interpretation - Interpretation - Generally - Use of extrinsic evidence - [See Deeds and Documents - Topic 2527 ].

Deeds and Documents - Topic 2706

Operation and interpretation - Reservations and exceptions - In deeds - [See Deeds and Documents - Topic 2527 ].

Real Property - Topic 5048

Title - Establishing title - Deeds - Interpretation - [See Deeds and Documents - Topic 2527 ].

Cases Noticed:

Knock v. Fouillard (2007), 252 N.S.R.(2d) 298; 804 A.P.R. 298; 2007 NSCA 27, refd to. [para. 17].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al., [1998] 2 S.C.R. 129; 227 N.R. 201, refd to. [para. 18].

Fierro v. Sinclair (2014), 339 N.S.R.(2d) 260; 1073 A.P.R. 260; 2014 NSCA 5, refd to. [para. 18].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract in Canada (6th Ed. 2011), pp. 440 to 451 [para. 18].

Counsel:

Stacey L. England, for the appellant;

Jeremy P. Smith, for the respondent.

This appeal was heard on May 13, 2014, at Halifax, N.S., before Fichaud, Beveridge and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On May 21, 2014, Fichaud, J.A., delivered the following judgment for the Court of Appeal.