Buchko v. Buchko, (1997) 156 Sask.R. 100 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 22, 1997
• Jurisdiction: Saskatchewan
• Citations: (1997), 156 Sask.R. 100 (QB)

Buchko v. Buchko (1997), 156 Sask.R. 100 (QB)

MLB headnote and full text

Temp. Cite: [1997] Sask.R. TBEd. JL.034

Henry Buchko (plaintiff/defendant by counterclaim) v. Richard Peter Buchko (defendant/plaintiff by counterclaim)

(1993 Q.B. No. 384)

Indexed As: Buchko v. Buchko

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Baynton, J.

May 22, 1997.

Summary:

The plaintiff and defendant were brothers. The plaintiff sued for the title to three quar­ter sections of farmland that the defendant inherited under their father's will. The de­fendant counterclaimed for rental for those lands. The defendant also counterclaimed for the title to two quarter sections of farmland that the plaintiff acquired as the survivor of a three way joint tenancy with their parents.

The Saskatchewan Court of Queen's Bench allowed the plaintiff's claim and held that he was entitled to the title to the three quarter sections of farmland. The defendant's coun­terclaim for rent for those lands was dis­missed. The defendant's counterclaim re­specting the two quarter sections of farmland was allowed only to the extent that the plaintiff was required to pay the defendant $36,659.57, the amount that the plaintiff had owed to their father and which was inherited by the defendant upon their father's death.

Contracts - Topic 1104

Formation of contract - Oral contracts - Buchko sued for the title to three quarter sections of farmland that his brother had inherited under their father's will - Buchko claimed entitlement based on an oral agreement that his father would transfer the land to him upon his death - The Saskatchewan Court of Queen's Bench allowed Buchko's claim - The facts estab­lished a verbal promise by Buchko's par­ents to transfer the land to Buchko in consideration of his paying off a debt on the land, his remaining on the home quar­ter to help his parents farm and his looking after them in their old age - Buchko had performed his part of the verbal agreement and his acts constituted part performance - The absence of a written memorandum was accordingly not a defence provided by the Statute of Frauds - See paragraphs 34 to 39.

Contracts - Topic 1105

Formation of contract - Agreements re­specting testamentary bequests - [See Contracts - Topic 1104 and second Con­tracts - Topic 8502 ].

Contracts - Topic 8005

Statute of frauds - Part performance - General - [See Contracts - Topic 1104 ].

Contracts - Topic 8502

Evidence - Proof of contract - Oral con­tract - [See Contracts - Topic 1104 ].

Contracts - Topic 8502

Evidence - Proof of contract - Oral con­tract - The Saskatchewan Court of Queen's Bench stated that "[a] will that is incon­sistent with an alleged verbal agreement on the part of the testator is a factor which casts doubt on the existence of the agree­ment. But it is not fatal to the enforcement of the agreement provided the evidence respecting its existence is cogent" - See paragraph 39.

Mortgages - Topic 207

Equitable mortgages - What constitutes an equitable mortgage - [See Trusts - Topic 625 ].

Trusts - Topic 625

Creation of trust - Transactions creating trusts - Land held to secure a debt - Buchko's parents helped him finance a purchase of land by granting a mortgage and contributing cash - In order to mort­gage the land, the parents took title and became the registered owners as joint tenants - Buchko farmed the land and paid the mortgage - A transfer in 1989 added Buchko as a third joint tenant - After his parents' death, Buchko's brother, the re­sidual beneficiary under their father's will, sought title to the land arguing that the 1989 transfer was void - The Saskatche­wan Court of Queen's Bench found that the 1989 transfer was voidable because the father lacked the requisite mental capacity - However, the court concluded that Buchko's parents held the land for him as security for his indebted­ness and that the transaction constituted both an equitable mortgage and a trust - The brother's claim was dismissed except that Buchko was ordered to pay him the indebtedness which he owed to the father - See paragraphs 14 to 18 and 42 to 51.

Cases Noticed:

McCormick v. McCormick, [1985] 6 W.W.R. 466; 42 Sask.R. 58 (Q.B.), refd to. [para. 20].

Brogden v. Brogden, [1920] 2 W.W.R. 803 (Alta. C.A.), refd to. [para. 20].

Dillwyn v. Llewellyn (1862), 31 L.J. Ch. 658, refd to. [para. 20].

Hansen v. Price Estate (1981), 14 Sask.R. 430 (Q.B.), refd to. [para. 21].

Orange v. Swierz Estate (1986), 54 Sask.R. 195 (Q.B.), refd to. [para. 21].

Brownscombe v. Vercamert Estate, [1969] S.C.R. 658, refd to. [para. 21].

Brownscombe v. Public Trustee (Alta.) - see Brownscombe v. Vercamert Estate.

Thompson v. Copithorne Estate, [1974] S.C.R. 1023, refd to. [para. 21].

Thompson v. Guaranty Trust Co. - see Thompson v. Copithorne Estate.

Lensen v. Lensen (1984), 35 Sask.R. 48 (C.A.), revd. [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 22].

Semeniuk v. Semeniuk and Semeniuk Estate et al., [1986] 5 W.W.R. 461; 49 Sask.R. 188 (Q.B.), refd to. [para. 23].

Douglas v. Harbison, [1989] S.J. No. 179 (Q.B.), refd to. [para. 23].

Hussey v. Palmer, [1972] 3 All E.R. 744 (C.A.), refd to. [para. 24].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 117 D.L.R.(3d) 257; 19 R.F.L.(2d) 165; 8 E.T.R. 143, refd to. [para. 24].

Sawatzky and Sawatzky v. Sawatzky (1986), 48 Sask.R. 161 (Q.B.), refd to. [para. 25].

Bank of Nova Scotia v. Kelly (1973), 5 Nfld. & P.E.I.R. 1; 41 D.L.R.(3d) 273 (P.E.I.S.C.), refd to. [para. 25].

Sample Estate, Re, [1955] 15 W.W.R. 193 (Sask. C.A.), refd to. [para. 27].

Grant Estate, Re (1980), 3 Sask.R. 135 (C.A.), refd to. [para. 27].

Hay Estate, Re, [1995] 2 S.C.R. 876; 183 N.R. 1; 82 O.A.C. 161, refd to. [para. 27].

Vout v. Hay - see Hay Estate, Re.

Pierce v. Empey, [1939] S.C.R. 247, refd to. [para. 30].

Owchar v. Owchar, [1949] 2 W.W.R. 97 (Sask. C.A.), consd. [para. 31].

Counsel:

R.C. Touet, for the plaintiff/defendant by counterclaim;

R.D. Maher, Q.C., for the defen­dant/plaintiff by counterclaim.

This action was heard on May 22, 1997, before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following judgment on May 22, 1997.