McFarland v. Hauser and Sunderland, (1977) 3 A.R. 449 (CA)

JudgeMcGillivray, C.J.A., Clement, Moore, Moir and Morrow, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateApril 14, 1977
Citations(1977), 3 A.R. 449 (CA)

McFarland v. Hauser (1977), 3 A.R. 449 (CA)

MLB headnote and full text

McFarland v. Hauser and Sunderland

Indexed As: McFarland v. Hauser and Sunderland

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., Clement, Moore, Moir and Morrow, JJ.A.

April 14, 1977.

Summary:

This case arose out of the lease of land by a farmer. The farmer gave to the plaintiff a three year lease of the farm along with the right of first refusal with respect to the farmer's 1040 acre farm. The farmer's wife signed a statutory consent form which was attached to the lease. The wife testified that at the time she signed the consent form that she did not understand the nature of her dower rights. The farmer sold the farm to a third party without giving the plaintiff the opportunity to meet or decline the purchase offer by the third party. The third party registered his interest in the farm under the Land Titles Act. At the time of the purchase the third party had notice of the plaintiff's right of first refusal. The plaintiff commenced an action for specific performance of his right of first refusal with respect to the farm. The trial court allowed the plaintiff's action and granted the plaintiff a decree of specific performance.

On appeal by the third party to the Alberta Court of Appeal the appeal was allowed and the judgment of the trial court was set aside. The Alberta Court of Appeal held that because the wife of the farmer did not understand the nature of her dower rights at the time she signed the consent form attached to the lease that her consent did not comply with the Dower Act and was invalid and, accordingly, the plaintiff could not in an action for specific performance enforce his right of first refusal - see paragraphs 27 to 47 and 96 to 117. In addition, the Alberta Court of Appeal held that the third party by registering his interest in the farm under the Land Titles Act required title to the farm which title was prior to and was by the plaintiff's unregistered equitable claim against the farm - see paragraphs 61 to 72 and 156 to 161.

Moore, J.A., dissenting, in the Alberta Court of Appeal, would have dismissed the appeal and would have affirmed the judgment of the Trial Court - see paragraphs 165 to 216.

Contracts - Topic 5648

Unenforceable contracts - Uncertainty - Terms of a right of first refusal to buy property - A farmer, in a lease of his land, gave the plaintiff the "first option to meet or decline the purchase offer" respecting the land leased by the farmer to the plaintiff - The Alberta Court of Appeal held that the plaintiff's right of first refusal was not void for uncertainty - The Alberta Court of Appeal stated that the plaintiff on agreeing to meet the purchase price then agrees to meet the price and other terms of the purchase offer - See paragraphs 50 and 123.

Contracts - Topic 6667

Illegal contracts - Lord's Day legislation - Transactions outside of the legislation - A farmer signed a lease to his farm on a Sunday - The Alberta Court of Appeal held that such a transaction is not within s. 4 of the Alberta Lord's Day Act - See paragraphs 48 and 118.

Real Property - Topic 2207

Dower - Bar of dower rights - Requirement of understanding of nature of dower rights - Dower Act, s. 56 - A farmer, in a lease of his land, gave the plaintiff a right of first refusal with respect to the farmer's 1040 acre farm - The farmer's wife signed a statutory consent form which was attached to the lease signed by the farmer - The wife testified that the time she signed the consent form that she did not understand the nature of her dower rights - The farmer sold the farm without giving the plaintiff the opportunity to meet or decline the purchase offer - The Alberta Court of Appeal held that the wife's consent did not comply with the Dower Act and was invalid and, accordingly, the plaintiff in an action against the farmer for specific performance could not enforce the right of first refusal - See paragraphs 27 to 47 and 96 to 117.

Real Property - Topic 8006

Title - Registration of instruments - Land titles system - Effect of notice of an unregistered encumbrance - A farmer, in a lease of his lands, gave the plaintiff the right of first refusal with respect to the farmer's 1040 acre farm - The farmer sold the farm to a third party without giving the plaintiff the opportunity to meet or decline the purchase offer made by the third party - The third party registered his interest in the farm under the provisions of the Land Titles Act - At the time of the purchase the third party had notice of the plaintiff's right of first refusal - The Alberta Court of Appeal held that the third party, acquired title to the farm, which title was prior to and was unaffected by the plaintiff's unregistered equitable claim against the farm - See paragraphs 61 to 72 and 156 to 161.

Cases Noticed:

Canadian Long Island Petroleums Ltd. and Sadim Oil & Gas Co. Ltd. v. Irving Industries (Irving Wire Products Division) Ltd. and Irving Industries (Foothills Steel Foundry Division) Ltd., 3 N.R. 430; [1975] 2 S.C.R. 715, folld. [paras. 2, 56, 94];, refd to. [para. 185].

Halifax v. Vaughan Construction Co. Ltd. et al. (1961), 30 D.L.R.(2d) 234, refd to. [para. 3]; folld. [para. 141].

London and South Western Railway Co. v. Gomm (1882), 20 Ch. D. 562, refd to. [para. 3]; folld. [para. 149].

Manchester Ship Canal Co. v. Manchester Race Course Co., [1900] 2 Ch. 352; [1901] 2 Ch. 37, refd to. [para. 3].

Mersy Docks & Harbour Board v. Procter, [1923] A.C. 253, folld. [para. 38].

Jones et al. v. Hough et al. (1879), 5 Ex. D. 115, folld. [para. 38].

Union Marine & Gen. Ins. v. Bodnarchuk et al., [1958] S.C.R. 399, folld. [para. 38].

McColl-Frontenac Oil Co. Ltd. v. Hamilton, [1953] 1 S.C.R. 127, folld. [paras. 43, 111].

British American Oil Co. Ltd. v. Kos et al., [1964] S.C.R. 167, folld. [para. 46].

Meduk et al. v. Soja et al., [1958] S.C.R. 167, folld. [para. 46].

Bergen v. Billingham et ux, [1972] 5 W.W.R. 215, folld. [para. 48].

W.J. Alan & Co. Ltd. v. El Nasr Export and Import Co., [1972] 2 Q.B. 189, folld. [para. 49].

Purchase v. Lichfield Brewery Co., [1915] 1 K.B. 184, refd to. [para. 54].

Munro v. Stuart, [1941] State Reports (N.S.W.) 203, folld. [paras. 60, 154].

Thompson v. Yockney (1912), 3 W.W.R. 591, affd. (1914), 6 W.W.R. 1397, folld. [para. 66].

Imperial Elevator & Co. v. Olive et al. (1914), 6 W.W.R. 1562, folld. [para. 66].

Rystephanuck v. Prosken, [1951] 3 W.W.R. 76, folld. [para. 66].

Frobisher Ltd. v. Canadian Pipelines & Petroleums Ltd. (1960), 21 D.L.R.(2d) 497, folld. [para. 66].

Glendale Investment Corporation Ltd. v. McDonald (1961), 35 W.W.R. 34, folld. [para. 66].

Boulter-Waugh & Co. Ltd. v. Union Bank of Canada, [1919] 1 W.W.R. 1046, folld. [paras. 70, 159].

Fels. v. Knowles, 26 N.Z.R. 604, refd to. [para. 70].

McKillop & Benjofield v. Alexander (1912), 45 S.C.R. 551, folld. [para. 74].

Knight v. Cushing (1912), 2 W.W.R. 704, folld. [para. 139].

Albay Realty Ltd. v. Dufferin-Lawrence Development Ltd., [1956] 2 D.L.R. 604, folld. [para. 150].

Purchase v. Lichfield Brewery, [1915] 1 K.B. 184, folld. [para. 152].

Waimiha Sawmilling Company Limited v. Waione Timber Company Limited, [1925] 3 W.W.R. 95, folld. [para. 159].

Hackworth v. Baker, [1936] 1 W.W.R. 321, folld. [para. 159].

Canadian Superior Oil of California Ltd. v. Cugnet (1954), 12 W.W.R. 174, folld. [para. 159].

Maurice Demers Transport Ltd. v. Foundation Tire Distributors (Edmonton) Ltd., [1974] 1 W.W.R 348, folld. [para. 159].

Rodick and Rodick (1958), 24 W.W.R. 356, folld. [para. 205].

Statutes Noticed:

Dower Act, R.S.A. 1970, c. 114, sect. 2, sect. 3, sect. 5 [para. 1]; sect. 6 [para. 101].

Lord's Day Act, R.S.A. 1970, c. 171, sect. 4 [para. 18].

Land Titles Act, R.S.A. 1970, c. 198, sect. 203 [para. 156].

Authors and Works Noticed:

Hanbury's Modern Equity (9th Ed.), p. 54 [paras. 54, 152].

Cheshire's Modern Law of Real Property (11th Ed.), p. 61 [para. 55].

Snell's Principles of Equity (28th Ed.), p. 577 [para. 153].

Counsel:

R. Kambeitz and M.J. Sychuk, for the appellant Sunderland;

W.D. Maxwell, for the respondent Hauser;

R.F. Babki and J.N. LeGrandeur, for the respondent McFarland.

This appeal was heard by McGILLIVRAY, C.J.A., CLEMENT, MOORE, MOIR and MORROW, JJ.A. The judgment of the Alberta Court of Appeal was delivered at Calgary, Alberta on April 14, 1977 and the following opinions were filed:

CLEMENT, J.A. - see paragraphs 1 to 8

MORROW, J.A. - see paragraphs 9 to 75.

McGILLIVRAY, C.J.A. - see paragraphs 76 to 164.

MOORE, J.A., dissenting - see paragraphs 165 to 216.

MOIR, J.A., concurred with MORROW, J.A.

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    ...[para. 26]. Matkowski v. Matkowski Estate and Matkowski (1983), 27 Sask.R. 1 (Q.B.), refd to. [para. 27]. McFarland v. Hauser et al. (1977), 3 A.R. 449; 2 Alta. L.R.(2d) 289 (C.A.), refd to. [para. Imperial Bank v. Esakin, [1924] 2 W.W.R. 33 (Sask. C.A.), refd to. [para. 29]. Friesen v. Bom......
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    ...The respondent submits that in McFarland v. Hauser, in the Appellate Division of the Supreme Court of Alberta, [1979] 2 Alta. L.R. (2) 289; 3 A.R. 449, Clement, J.A., at p. 321 found a means of reconciling Halifax with Canadian Long Island Petroleums. He said: "In Halifax the agreement unde......
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    ...8]. Royal Trust Corp. of Canada v. Mahoney, [1993] O.J. No. 1944 (Gen. Div.), refd to. [para. 8]. McFarland v. Hauser and Sunderland (1977), 3 A.R. 449 (C.A.), revd. [1979] 1 S.C.R. 337; 23 N.R. 362; 12 A.R. 332, refd to. [para. Authors and Works Noticed: Sharpe, J.A., Injunctions and Speci......
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15 cases
  • Darnley v. Tennant, (2006) 408 A.R. 261 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 29 Junio 2006
    ...[para. 26]. Matkowski v. Matkowski Estate and Matkowski (1983), 27 Sask.R. 1 (Q.B.), refd to. [para. 27]. McFarland v. Hauser et al. (1977), 3 A.R. 449; 2 Alta. L.R.(2d) 289 (C.A.), refd to. [para. Imperial Bank v. Esakin, [1924] 2 W.W.R. 33 (Sask. C.A.), refd to. [para. 29]. Friesen v. Bom......
  • Nature Conservancy of Canada v. Waterton Land Trust Ltd. et al., (2014) 613 A.R. 205 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 21 Diciembre 2012
    ...assignee, executor, administrator, receiver, receiver manager, liquidator and trustee of the grantor[.] 111. See McFarland v Hauser (1977), 3 AR 449, 2 Alta LR (2d) 289 at 316-317 (SC (AD)). 112. Victor Di Castri, QC, Registration of Title to Land , loose-leaf, vol 2 (Toronto: Thomson Reute......
  • Desa Stores Ltd. and Columbus Investment Corp. v. Melcor Developments Ltd., (1983) 45 A.R. 154 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 22 Junio 1983
    ...The respondent submits that in McFarland v. Hauser, in the Appellate Division of the Supreme Court of Alberta, [1979] 2 Alta. L.R. (2) 289; 3 A.R. 449, Clement, J.A., at p. 321 found a means of reconciling Halifax with Canadian Long Island Petroleums. He said: "In Halifax the agreement unde......
  • SBS Sealants Inc. v. Robroy Industries Ltd. et al., (2002) 158 O.A.C. 365 (CA)
    • Canada
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    ...8]. Royal Trust Corp. of Canada v. Mahoney, [1993] O.J. No. 1944 (Gen. Div.), refd to. [para. 8]. McFarland v. Hauser and Sunderland (1977), 3 A.R. 449 (C.A.), revd. [1979] 1 S.C.R. 337; 23 N.R. 362; 12 A.R. 332, refd to. [para. Authors and Works Noticed: Sharpe, J.A., Injunctions and Speci......
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