Knowlton v. Bartlett, (1984) 60 N.B.R.(2d) 271 (TD)

• Judge: Jones, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 24, 1984
• Jurisdiction: New Brunswick
• Citations: (1984), 60 N.B.R.(2d) 271 (TD)

Knowlton v. Bartlett (1984), 60 N.B.R.(2d) 271 (TD);

    60 R.N.-B.(2e) 271; 157 A.P.R. 271

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Knowlton v. Bartlett

(S/M/125/84)

Indexed As: Knowlton v. Bartlett

Répertorié: Knowlton v. Bartlett

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Jones, J.

December 20, 1984.

Summary:

Résumé:

A husband and wife were joint tenants when they divorced in 1977. In 1981, the wife executed a deed to herself. The wife died in 1982 leaving her brother as sole beneficiary under her will. The brother applied for an order for partition or sale.

The New Brunswick Court of Queen's Bench, Trial Division, held that the wife's conveyance to herself severed the joint tenancy, creating a tenancy in common. The court, in exercising its discretion, refused to order partition or sale, because partition was inappropriate and a sale would be a hardship on the husband.

Real Property - Topic 3723

Joint estates - Joint tenancies - Nature of - The New Brunswick Court of Queen's Bench, Trial Division, stated that a joint tenancy was dependent upon the existence of unity of possession, interest, time and title - See paragraph 8.

Real Property - Topic 3890

Joint estates - Joint tenancies - Severance of - Unilateral acts which result in severance - Conveyance by joint tenant to himself - A divorced husband and wife were joint tenants - The wife conveyed her interest to herself, which was permitted under s. 23(3) of the Property Act - The New Brunswick Court of Queen's Bench, Trial Division, held that the wife's conveyance severed the joint tenancy, because there was no longer unity of title - See paragraphs 7 to 16.

Real Property - Topic 6604

Partition - Whether order mandatory - The New Brunswick Court of Queen's Bench, Trial Division, discussed the court's discretion to refuse to order the partition or sale of land - See paragraphs 19 to 32.

Real Property - Topic 6685

Partition - Bars - Hardship - A divorced husband and wife held property as tenants in common after the wife's unilateral act severed the joint tenancy - The wife died - Her beneficiary applied for partition or sale - The husband lived on the property since 1946 - He was now 63 - The husband made considerable improvements to the house since his wife left him in 1971 - The New Brunswick Court of Queen's Bench, Trial Division, refused to order partition or sale, because to do so would force a hardship on the husband - See paragraphs 19 to 33.

Cases Noticed:

Williams v. Hensman (1861), 70 E.R. 862, refd to. [para. 9].

Re Murdock and Barry (1975), 64 D.L.R.(3d) 222 (Ont. H.C.), consd. [para. 12].

Davis v. Davis, [1954] 1 D.L.R. 827 (Ont. C.A.), refd to. [para. 20].

Re Yale and McMaster (1974), 46 D.L.R.(3d) 167, refd to. [para. 22].

Melvin v. Melvin (1975), 11 N.B.R.(2d) 351; 7 A.P.R. 351 (N.B.C.A.), consd. [para. 24].

Bruce v. Bruce (1976), 14 N.B.R.(2d) 422; 15 A.P.R. 422 (N.B.C.A.), consd. [para. 26].

Mastron v. Cotton, [1926] 1 D.L.R. 767, refd to. [para. 29].

Statutes Noticed:

Property Act, R.S.N.B. 1973, c. P-19, sect. 23 [para. 11].

Conveyancing and Law of Property Act, R.S.O. 1970, c. 85, sect. 41, sect. 42 [para. 12].

Authors and Works Noticed:

Megarry and Wade, The Law of Real Property (2nd Ed. 1959), p. 423 [para. 10].

Counsel:

David R. Ames, for the applicant;

G. Peter Hyslop, for the respondent.

This application was heard on September 24, 1984, before Jones, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on December 20, 1984: