Ost v. Turnbull and Turnbull, (1977) 7 A.R. 328 (CA)

JudgeProwse, Moir and Haddad, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateNovember 07, 1977
Citations(1977), 7 A.R. 328 (CA)

Ost v. Turnbull (1977), 7 A.R. 328 (CA)

MLB headnote and full text

Ost v. Turnbull and Turnbull

Indexed As: Ost v. Turnbull and Turnbull

Alberta Supreme Court

Appellate Division

Prowse, Moir and Haddad, JJ.A.

November 7, 1977.

Summary:

This case arose out of the plaintiff's claim to the specific performance of an agreement for the sale of land. A man and wife owned the west half of a section of farmland. Their house was located just inside the southern boundary of the northwest quarter section and access to the house could only be obtained over one corner of the southwest quarter section. Further, a windbreak for the house and a garden were located at the north of the southwest quarter section. The husband agreed to sell the southwest quarter section, but refused to complete on the ground that his wife had not consented to the sale of homestead property as defined in s. 2(c) of the Dower Act, R.S.A. 1970, c. 114. The purchaser brought an action for specific performance of the agreement for sale.

The Alberta Supreme Court, Trial Division, dismissed the action. The Trial Division held that the homestead parcel included a portion of the southwest quarter section and that the wife's consent was necessary for its sale. The purchaser appealed.

The Alberta Court of Appeal allowed the appeal. The Court of Appeal held that the homestead parcel was located in the northwest quarter section on which the dwelling house was located and did not overlap the southwest quarter section. The Court of Appeal stated that it would be necessary for the husband to apply to the planning authorities for a subdivision of the southwest quarter section to permit access to the homestead parcel before the agreement for sale could be specifically enforced.

Real Property - Topic 2143

Dower - Homestead legislation - Homestead defined - Dower Act, R.S.A. 1970, c. 114, s. 2(c) - The Alberta Court of Appeal held that a homestead parcel is located in the quarter section on which the dwelling house is located and does not overlap two or more quarter sections.

Cases Noticed:

Overland v. Hemelford, [1920] 2 W.W.R. 481, refd to. [para. 15].

Bain v. Forthergill (1873), L.R. 7 E. & I. 158, appld. [para. 30].

Statutes Noticed:

Dower Act, R.S.A. 1970, c. 114, sect. 2(c) [para. 10].

Planning Act, R.S.A. 1970, c. 276, sect. 2(m) [para. 19].

Surveys Act, R.S.A. 1970, c. 358, sect. 5, sect. 6, sect. 12 [para. 25].

Authors and Works Noticed:

Megarry and Wade, The Law of Real Property (4th Ed.), pp. 830-831 [para. 21].

Webster's Third International Dictionary [para. 17].

Counsel:

D.J. Chernichen, for the appellant;

R.J. Wiedemann, for Charles Turnbull;

S.J. Lerner, for Angelina Turnbull.

This case was heard before PROWSE, MOIR and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On November 7, 1977, MOIR, J.A., delivered the following judgment for the Appellate Division.

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2 practice notes
  • Turnbull v. Ost, (1978) 24 N.R. 540 (Motion)
    • Canada
    • Supreme Court (Canada)
    • October 16, 1978
    ...Canada was dismissed in the case of Charles James Turnbull and Angelina Turnbull v. Oliver Melvin Ost , a case from the Alberta courts, see 7 A.R. 328 - see Bulletin of Proceedings taken in the Supreme Court of Canada at page 9, October 20, 1978. Motion dismissed. [End of document] align:ju......
  • Green Drop Ltd. v. Schwormstede, (1989) 95 A.R. 69 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 2, 1989
    ...2145 above]. Cases Noticed: B.A. Oil v. Kos (1963), 46 W.W.R.(N.S.) 141 (S.C.C.), refd to. [para. 10]. Ost v. Turnbull and Turnbull (1977), 7 A.R. 328; 4 Alta. L.R.(2d) 358 (C.A.), refd to. [para. Statutes Noticed: Dower Act, R.S.A. 1980, c. D-38, sect. 1, sect. 2, sect. 3, sect. 11 [para. ......
2 cases
  • Turnbull v. Ost, (1978) 24 N.R. 540 (Motion)
    • Canada
    • Supreme Court (Canada)
    • October 16, 1978
    ...Canada was dismissed in the case of Charles James Turnbull and Angelina Turnbull v. Oliver Melvin Ost , a case from the Alberta courts, see 7 A.R. 328 - see Bulletin of Proceedings taken in the Supreme Court of Canada at page 9, October 20, 1978. Motion dismissed. [End of document] align:ju......
  • Green Drop Ltd. v. Schwormstede, (1989) 95 A.R. 69 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 2, 1989
    ...2145 above]. Cases Noticed: B.A. Oil v. Kos (1963), 46 W.W.R.(N.S.) 141 (S.C.C.), refd to. [para. 10]. Ost v. Turnbull and Turnbull (1977), 7 A.R. 328; 4 Alta. L.R.(2d) 358 (C.A.), refd to. [para. Statutes Noticed: Dower Act, R.S.A. 1980, c. D-38, sect. 1, sect. 2, sect. 3, sect. 11 [para. ......

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