1900. Company has shown, I think, that it has duly taken all Judgment. the steps that are necessary under the Act to entitle it to BAIN, J. make the application for the appointment of a sole arbi trator. The objection is taken that as Mrs. Handel purchased, as she alleges, without notice of the proceedings that were being taken to acquire the land, she is not affected by them. But section 145 must be understood to mean that the deposit of the map or plan, etc., is to be notice to all parties who may be interested in or who may deal with the land described after the date of the deposit; and on the certificate of title that Mrs. Handel received there is a memorandum that the map or plan affecting the land in question had been deposited. But, apart from the question whether she had thus notice of the proceedings, as she purchased from Mrs. Batter after the proceedings to acquire the land had been begun, she is in a position analogous to that of a purchaser during the pendency of a suit; and public policy, I think, would make it necessary to apply the maxim pendente lite nihil innovetur; for, otherwise, successive alienations might defeat the purposes of the Act. The other objection that is taken is that, as Mrs. Batter did give notice of the appointment of her arbitrator, it cannot be said that "the opposite party" has not given notice, so as to bring the case within section 150. Mrs. Knox appears as a registered mortgagee of the land; and, whether her mortgage is under the old system or the new, she is interested in the land and would be entitled to claim compensation, and is a party opposed in interest to the Railway Company: In re Toronto Belt Line Railway Co., 26 O. R. 413. She has not given notice of appointing an arbitrator; and to insure the attainment of the object of the Act it is necessary, I think, to read the words "opposite party" in section 150 distributively, as Meredith, C.J., did in Re Toronto, H. & B. Railway Co. and 1900. re Burke, 27 O.R. 690, and to hold that, as both parties interested as against the Railway Company have not given Judgment. notice, the Railway Company has the right to apply for BAIN, J. the appointment of a sole arbitrator. Instead of appointing as sole arbitrator a person suggested by either of the parties, I think it better to appoint Mr. Macdonald, the Master of the Court. REGINA V. FAWCETT. Before BAIN, J. Dominion Lands Act-60 & 61 Vic., D., c. 29, s. 18-Charge on land under this section-Costs-Real Property Act-Registry Act. Under section 18 of 60 & 61 Vic. (D.), c. 29, amending the Dominion Lands Act and set out in the statement below, unless the Registrar makes the necessary entries respecting the indebtedness of the patentee there referred to “in the proper register or other record book in his office," no charge or lien will be created on the land comprised in the patent for such indebtedness. A docket or note book in which the Registrar kept a record of applications under The Real Property Act received and examined by him is not to be considered "the proper register or record book" in which to make the necessary entries, which should have been made in the Abstract Book kept under The Registry Act, as the Patent had been registered under the old system of registration. Under Rule 277 of The Queen's Bench Act, 1895, costs will be given against the Crown when it fails in proceedings taken by way of caveat and petition under The Real Property Act. ARGUED 10th May, 1900. 1900. HEARING of petition under the Real Property Act. By Statement. section 18 of 60 & 61 Vic., c. 29, (D. 1897), amending the Dominion Lands Act, it is provided as follows: "18. In any case in which any settler or purchaser is entitled to the issue of letters patent for any land to which the said Act relates, but the issue of such patent is delayed because of the liability of such settler or purchaser, either as principal or surety upon a bond to the Crown or to the Minister, or as mortgagor on a mortgage in favor of the Crown or the Minister, for the repayment of an advance of seed grain, or on account of any other indebtedness to the Crown, the Minister may cause such letters patent to issue in favor of the settler or purchaser entitled thereto, and may transmit them to the registrar in whose district the land is situated, with a certificate signed by him or his deputy, or by some other person named by him for the purpose, setting forth the particulars of such liability or indebtedness, including the total amount of the liability or indebtedness, with the rate of interest to be paid thereon, the names of the persons liable or indebted therefor, and the land to be charged thereby, and the registrar when registering the patent for such land shall make the necessary entries respecting such indebtedness in the proper register or other record book in his office, and thereafter the said indebtedness shall be and remain a charge upon the land until satisfied and extinguished according to law." Fawcett having made application for a certificate of title for the N. E. quarter of Section 10, Township 11, Range 8 W., notice of the application was served upon the Minister of the Interior, and he caused a caveat to be filed, claiming that the Crown was entitled, under the above cited statute, to a lien or charge upon the lands for seed grain advances which the Government had made to Fawcett in 1876, and for the repayment of which indebtedness he had executed to Her Majesty two mortgages on the 1900. N. W. quarter of Section 14, Township 11, Range 8 W., Statement. of which he was then in possession under a homestead entry. H. M. Howell, Q. C., and T. G. Mathers for the Crown. It is admitted the patent was sent to the proper registrar; if an officer does not do what the law requires, the Crown should not be a loser. As to the effect of failure to record, owing to neglect of recording officer: 20 A. & E. Ency. of Law, 244. Fawcett had no title under the recommendation. The patentee, Fawcett, never received the certificate. The receipt was withheld on account of his indebtedness. cett. J. A. M. Aikins, Q. C., and Isaac Pitblado for FawFawcett had title prior to the issue of the patent. On 12th October, 1893, his certificate of recommendation was issued, and according to 60 & 61 Vic., c. 29, s. 5, he is deemed to have received it on that date. The certificate gave title to the fee and a right to convey or assign: Dominion Lands Act, R. S. C., c. 54, ss. 38, 42. Sections 59 and 60 show there is a vested right after recommendation for patents: Re Irish, 2 M. R. 361; Harris v. Rankin, 4 M. R. 133; Re Mathers, 7 M. R. 434. After recommendation and before patent the Crown was simply a dry trustee. After this the land became property and civil rights within the Province and the Dominion had no right to legislate concerning same. In any event the patent speaks from its date, not from delivery: Clench v. Hendricks, Tay. 405; Cruise's Digest, vol. 5, 45; Plowden's Com. 490. The patent was issued on 6th May, 1899, but was held in the Department of the Interior, Ottawa, and was not received by the registrar until 22nd May,1899. The statement of indebtedness under the Act 60 & 61 Vic., c. 29, s. 18, was not signed until 8th May, 1899. The patent was therefore issued clear of 1900. any incumbrance, and the Crown after patent was issued Argument. could not then by its own act make any charge on the land. Moreover, under the statute it is a condition precedent to the indebtedness becoming a charge, that all the requirements of section 18 aforesaid are fully complied with. Here the registrar made no proper entry respecting the indebtedness when he registered the patent. He registered the patent in the usual way under the old system, the memorandum of the patent was entered on the abstract book. The only entry as to seed grain indebtedness is in the "application book," which is not a book of record in the office. BAIN, J.-The parties have asked me to decide the claim raised by the petition filed on the caveat upon the statement of facts they have agreed upon and filed, and on the evidence of Mr. Beynon, the District Registrar for the district in which the land is, taken before me in Chambers. Fawcett became entitled to the Crown patent for the land in question in 1893, but the issue of the patent was delayed because of his liability for the payment of the seed grain advances until the 6th of May, 1899, when the patent was issued and was transmitted to the District Re gistrar for registration, together with certificates that comply in their terms with the provisions of 60 & 61 Vic., c. 29, s. 18. (D.) The Crown has to rely wholly on this section for the lien or charge that it claims to have on this land. It seemed to be assumed by both counsel on the argument that the effect of the section may be, if its directions are complied with, to create a lien, as is claimed in the present case, on lands other than those on which the liability or indebtedness has been secured by the debtor. This is a question of construction that I need not, however, consider, for I think I must hold on the evidence |