Glenelg Homestead Ltd. v. Wile, 2005 NSCA 4

• Judge: Roscoe, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 07, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSCA 4;(2005), 230 N.S.R.(2d) 289 (CA)

Glenelg Homestead Ltd. v. Wile (2005), 230 N.S.R.(2d) 289 (CA);

 729 A.P.R. 289

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. JA.027

Kevin B. Wile (appellant) v. Glenelg Homestead Limited (respondent)

(CA 212994; 2005 NSCA 4)

Indexed As: Glenelg Homestead Ltd. v. Wile

Nova Scotia Court of Appeal

Roscoe, Saunders and Oland, JJ.A.

January 7, 2005.

Summary:

A 1978 deed conveyed to the plaintiff a property described as being bounded by Rose Bay to north and as "being an intended to be" the second lot described in a 1972 deed. In fact, the property conveyed to the plaintiff was the first lot in the 1972 deed. In 1996, the defendant acquired the same first lot for $1 by virtue of two quit claim deeds from his parents. The defendant mortgaged the first lot. The quit claim deeds and the mortgage were registered before the plaintiff registered his deed to his property, the first lot. The plaintiff applied for a declaration respecting its ownership rights to the first lot. The plaintiff also sought rectification of the legal description contained in the deed which conveyed the first lot to it.

The Nova Scotia Supreme Court, in a decision reported 216 N.S.R.(2d) 180; 680 A.P.R. 180, ruled that the plaintiff's interest in the first lot had priority over the defendant's interest but was subject to the mortgage. The court allowed the plaintiff's application for rectification and ordered the mention of the second lot removed. The defendant appealed. (The findings respecting the mortgage were not appealed).

The Nova Scotia Court of Appeal dismissed the appeal.

Contracts - Topic 2750

Consideration - Contracts under seal - Necessity for consideration - General - [See Real Property - Topic 7825 ].

Real Property - Topic 7825

Title - Registration of instruments, etc. - Requirement of registration - Subsequent purchaser for value - The plaintiff held title to property by virtue of a deed executed before but registered after the registration of two quit claim deeds that conveyed the same property to the defendant for $1 - The defendant was not aware that the quit claim deeds had conveyed the same property as the one conveyed by the deed to the plaintiff - The trial judge ruled that the plaintiff's interest had priority over the defendant's interest where the defendant had not established that the sum of $1 constituted valuable consideration - The Nova Scotia Court of Appeal upheld the decision, adding that the fact that the quit claim deeds were under seal did not remove the necessity to prove valuable consideration - See paragraphs 1 to 26.

Sale of Land - Topic 863

The contract - Consideration - Necessity for - The Nova Scotia Court of Appeal held that anything voluntarily done or expended subsequent to the delivery of the deed to improve the worth of the property to the grantee, which was not in return for the deed, could not logically constitute the consideration for the previous bargain to convey the property - See paragraph 24.

Cases Noticed:

Marriott v. Feener, [1950] 1 D.L.R. 837 (N.S.S.C.), consd. [para. 16].

McNair v. Currie (1991), 117 N.B.R.(2d) 43; 295 A.P.R. 43; 81 D.L.R.(4th) 744 (C.A.), consd. [para. 16].

Dickson v. Evans (1794), 6 Term Rep. 60, refd to. [para. 17].

Miller v. Halifax Power Co. (1914), 24 D.L.R. 29 (N.S.C.A.), consd. [para. 18].

Annable v. Coventry (1911), 1 W.W.R. 148 (Sask. C.A.), consd. [para. 20].

Schoppel v. Beaumont Estate, [1970] B.C.J. No. 432 (S.C.), consd. [para. 22].

Dartmouth (City) v. Dartmouth Police Association (1998), 172 N.S.R.(2d) 352; 524 A.P.R. 352 (C.A.), consd. [para. 28].

Statutes Noticed:

Registry Act, R.S.N.S. 1989, c. 392, sect. 18 [para. 14].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada (4th Ed. 1999), pp. 127 to 129 [para. 26].

Lamont, Donald, H.L., Real Estate Conveyancing (1976), p. 81 [para. 25].

Counsel:

Allen C. Fownes, for the appellant;

Michael J. Wood, Q.C., for the respondent.

This appeal was heard on November 22, 2004, by Roscoe, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal.

The decision of the Court of Appeal was delivered on January 7, 2005, by Roscoe, J.A.