Senstad v. Makus, (1976) 3 A.R. 1 (CA)

• Judge: McDermid, Sinclair and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 24, 1976
• Citations: (1976), 3 A.R. 1 (CA)

Senstad v. Makus (1976), 3 A.R. 1 (CA)

MLB headnote and full text

Senstad v. Makus

Indexed As: Senstad v. Makus

Alberta Supreme Court

Appellate Division

McDermid, Sinclair and Haddad, JJ.A.

August 24, 1976.

Summary:

This case arose out of the plaintiff's claim against the defendants for the specific performance of an agreement for the sale of land. A husband and wife agreed to sell 800 acres of land, of which 160 acres was their homestead. The wife executed a consent to the sale of the homestead in accordance with s. 6 of the Dower Act, R.S.A. 1970, c. 114, but did not execute an acknowledgment of the consent in accordance with s. 6. The plaintiff brought an action for specific performance of the agreement. The defendant argued that the plaintiff should be required to take the non-homestead portion. The Alberta Supreme Court, Trial Division, allowed the plaintiff's action. The defendants appealed.

The Alberta Court of Appeal allowed the appeal and held that the whole of the agreement was unenforceable, because the acknowledgment of the consent was necessary.

Sale of Land - Topic 1124

Formation of the contract - Parties - Husband and wife - Consent of spouse - Requirement of acknowledgment of consent - The husband and wife agreed to sell 800 acres of land, of which 160 acres was their homestead - The wife executed a consent to the sale of the homestead in accordance with s. 6 of the Dower Act, R.S.A. 1970, c. 114, but did not execute an acknowledgment as required by s. 6 - The Alberta Court of Appeal held that the agreement for sale was unenforceable, because the acknowledgment was necessary - See paragraphs 1 to 9.

Sale of Land - Topic 1454

Formation of the contract - Form and contents of memorandum - The land - Severability of interest conveyed - The husband and wife agreed to sell 800 acres of land, of which 160 acres was their homestead - The Alberta Court of Appeal held that the agreement was unenforceable, because the wife failed to execute an acknowledgment to her consent to the sale of the homestead under s. 6 of the Dower Act, R.S.A. 1970, c. 114 - The vendors argued that the agreement with regard to the non-homestead land should be enforced - The Alberta Court of Appeal found that the parties intended the land to be treated as a block, refused to sever the homestead lands from the balance and held that the whole of the agreement was unenforceable - See paragraphs 10 to 13.

Cases Noticed:

McColm v. Belter and Belter, [1975] 1 W.W.R. 364, appld. [para. 3].

Rose v. Dever, [1972] 2 W.W.R. 431, affd. 1 N.R. 56 (S.C.C.), refd to. [para. 9].

Statutes Noticed:

Dower Act, R.S.A. 1970, c. 114, sect. 6 [para. 2].

Counsel:

L.B. Hogan, for the respondent;

B.E. Carleton and D.I. Shapiro, for the appellant.

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

On August 24, 1976, McDERMID, J.A., delivered the following judgment of the Appellate Division: