Brookfield v. The New Brunswick and Canada Railway and Land Company, and others.

Jur. 935), seems to bear on this question. By the 36th section of the Companies' Clauses Consolidation Act, 1845, all creditors of a company had a right of levying execution against the property and effects of the company: the 44th section of the same Act declared that the obligees of the Railway Bonds should be entitled to be paid out of the tolls, or other property or effects of the company, without preference on account of the date of the Bond. It was held upon the construction of these sections, that the 44th section did not create a specific lien in favor of bond creditors, upon the tolls or other property or effects of the company, and that this construction was not altered by the 32nd section of the special Act, by which mortgage and bond creditors were declared to be entitled to be paid pari passu, and without preference, one above the other, out of the tolls and other estate and effects of the company. And by the 33rd section of the special Act, it was declared that it would be lawful for the mortgagees or bond creditors of the company to enforce the payment of the arrears of principal and interest by the appointment of a receiver. The Lord Chancellor, after referring to the sections bearing on the case, stated the first question to be whether upon the construction of the Statutes, a specific equitable lien was given to the mortgagees and bond creditors of the company, upon the estate and effects generally of the company; and after pointing out inconsistencies which would follow from such a construction, makes some general observations which to my mind are peculiarly apposite to the case before us: he says, "It is obvious also that these companies "(railroad company) cannot be carried on without large credit being "given; and if so, the Legislature could never have intended to "exclude the general body of creditors from all remedy for their "debts, by giving a specific lien on the whole estate and effects of "the company to a particular class of creditors. It, is however, said "that although there may be difficulty in contending that while the "property remains in the possession of the company, and is being "used for the purposes of the company, it may be dealt with notwith"standing the lien, yet that effect may be given to the plaintiff's "construction of the Act, by allowing the bond creditors or the "mortgage creditors, at any particular moment to assert their rights, "and that these rights may be inchoate or in suspense until they "have asserted them. But what a fraud it would be upon the "general creditors to allow the company to contract largely upon "the possession and apparent ownership of property, and then to "give to the mortgage or bond creditors the opportunity of asserting "their lien, when probably the bond and mortgage creditors had "allowed the company to obtain on credit the largest portion of their "stock! Such a right is not consistent with the general administra

Doe ex dem. Kerr v. Jamieson.

"tion of justice, and with the safety and convenience of a commercial "concern, which this to a great extent is." And again, with how much greater force does the following observation apply to this case. "Now, the claim set up, of a specific equitable line, is so extraordi"nary as connected with property of this nature, that it is most "unreasonable to suppose that the right to it should be left to be "inferred from a mere statement that payment was to be made out "of the estate and effects of the company. It is not likely that the "Acts of Parliament by which these companies are constituted, and "which are framed by the companies themselves, should be so pre"pared by them as to give the bondholder a lien on every spade or "barrow which the company may possess. It would be a stigma on "a company, inviting subscribers, and before any credit in fact "existed, to insert a clause into their Act depriving them of the "power to contract on credit." Had it been intended to create such a charge as plaintiff contended for, in the words of Sir G. J. Turner, L. J. in Gardner v. London, Chatham and Dover Railway Company, Law Rep. 2 Chan. 222 "there can be no doubt that apt words could "have been found for that purpose, and I think that such would "have been inserted in the instrument."

We are therefore constrained to say, that it is inconsistent with the whole purview of the transaction, to suppose that any such specific lien as the plaintiff Brookfield claims, was intended to be created; and that therefore the bill has no equity upon which the remedy sought could be founded, and that it should have been dismissed with costs. The appeal is therefore allowed, and judgment reversed without costs.

DOE ex dem. KERR v. JAMIESON.

JUNE 20th, 1871.

A sheriff's deed recited that for want of goods and chattels he had taken all the right title, &c., that R. J. (the debtor) had in certain lands at the time of filing a memorial of judgment. At that time R. J. had no title to the land, but it was granted to him before the execution issued.

Held, That as the operative part of the deed showed the recital was a clear mistake, it should not be allowed to defeat the deed.

In 1862, a judgment was obtained against R. J., and a memorial registered. In 1866 R. J. became the grantee of certain lands, which in 1867 he conveyed to the defenddant. A f. fa. execution was afterwards issued on the judgment, and the land sold thereunder by the sheriff.

Held, That the execution related back to the memorial, and defeated the intermediate conveyance to the defendant.

446

CASES IN THE SUPREME COURT,

Doe ex dem. v. Jamieson.

Ejectment tried before RITCHIE, C. J., at the Carleton Circuit. The lessor of the plaintiff claimed under a sheriff's deed founded on a judgment obtained against Robert Jamieson in 1862, a memorial of which was registered on the 23rd November, 1862. Robert Jamieson received a grant of the land on the 1st November, 1866, and on 30th August, 1867, conveyed it to the defendant, John Jamieson. On the 4th September, 1867, a fi. fa. was issued on the judgment against Robert Jamieson, and delivered to the sheriff. The land was duly advertised and sold, the lessor of the plaintiff being the purchaser. The deed from the sheriff was dated 20th May, 1870, and after reciting that for want of goods and chattels he had "taken certain lands and tenements of the said Robert Jameison, described as follows: All the right, title, interest, claim and demand that Robert Jamieson had at the time of filing a memorial of judgment, to all that certain piece and parcel of land, situate in the Parish of Wicklow," &c. (describing the number of the lot, and the bounds); and after stating that the land was advertised and sold according to law, and that Robert Kerr, the lessor of the plaintiff, became the purchaser, it stated that the sheriff "did grant, bargain and sell unto the said Robert Kerr, all the said lands and tenements, together with all the buildings and appurtances thereon being," &c. It was contended on behalf of the defendant that the recital in the sheriff's deed showed that he only professed to have sold under the execution all the title that Robert Jamieson had in the land at the time of registering the memorial, when, in fact, he had no title at all; that the memorial was only a lien, and if not followed up by execution, liable to be defeated by a subsequent conveyance; and that the plaintiff showing no title, the action would not lie. The jury, under the direction of the learned Judge, having found for the plaintiff,

F. Fisher, in Michaelmas Term last, obtained a rule nisi for a new trial on the ground of misdirection, contending: 1st. That a memorial of judgment is merely a lien, and gives no power of sale, and may be defeated by a subsequent conveyance, if not followed up by an execution. 2nd. The deed to the defendant conveyed the legal estate, and the sheriff could only sell the equitable estate. 3rd. That by the recital of the sheriff's deed, he only professed to have taken the interest Robert Jamieson had in the land when the memorial was registered, at which time the land in question was Crown land; and therefore no title passed.

Needham showed cause in Easter Term. The recital in the sheriff's deed does not affect its validity where the operative part of the deed is correct, as it is in this case. In 4 Com. Dig. 271, it is said that a recital is not an essential part of a deed, for it may explain the in

TRINITY TERM, THIRTY-FOURTH VICTORIA.

Kerr ex dem. v. Jamieson.

447

tent, or be repugnant to it. And in Hob. 128: "A misrecital of the estate of the grantor in the land will not invalidate a deed." And in Perry v. Watts (3 M. & G. 778), it is said that a deed must not be disturbed, where by any possibility it may be made good. So also in Wortman v. Ayles (1 Hannay, 66), the same doctrine is affirmed. As to the other point, the case of Doe dem. Solomon v. Graham, in this Court, fully answers it.

F. Fisher, contra. Ist. The plaintiff is surely bound by his own evidence, and having put in this deed as evidence of title, is bound by it. The recital in a deed binds a party claiming under it, for here it is an affirmation made under the hand and seal of the sheriff. The older cases which held the contrary have been overruled by later authorities. Bowman v. Taylor (2 Ad. & E. 278); Carpenter v. Buller (8 M. & W. 212), where the parties to a bond are held to be estopped from denying a recital in it. Gaisford v. Stone (3 Com. B. 176). Therefore the plaintiff here is bound by the recital in the sheriff's deed. 2nd. The execution on which the land was taken is of no avail, as between the time when the memorial was registered and the issuing of the execution, the legal fee in the land passed to the defendant. A memorial is only an equitable lien, and can only be enforced in equity. Mills v. Mills (4 Allen, 46). A party having a memorial is only in the position of a man having a judgment formerly, which, if not followed up by execution, only operates as an equitable lien. [ALEEN, J.: The question is, whether the execution does not relate back to the time of filing the memorial.] It cannot in this case, as before the execution issued, the legal estate had been transferred.

Cur, adv. vult.

ALLEN, J., now delivered the judgment of the Court.

The lessor of the plaintiff claimed under a sheriff's deed, founded on a judgment obtained against Robert Jamieson in 1862, a memorial of which was registered on the 23rd November, 1862. On the 1st November, 1866, the land in question was granted to Robert Jamieson. On the 4th September, 1867, a fi. fa. was issued on the judgment against Robert Jamieson, and delivered to the sheriff: previous to this, on the 30th August, 1867, Robert Jamieson conveyed the land to the defendant. The sheriff's deed was dated 20th May, 1870, and after reciting that for want of goods and chattels he had "taken certain lands and tenements of the said Robert Jamieson, "described as follows:-All the right, title, interest, claim and de"mand that Robert Jamieson had at the time of filing a memorial "of judgment, to all that certain piece and parcel of land situate in

Kerr ex dem. v. Jamieson.

"the Parish of Wicklow," &c. (describing the number of the lot and the bounds), and that after advertising and selling the same according to law, Robert Kerr, the lessor of the plaintiff, became the purchaser, it stated that the sheriff did "grant, bargain, and sell, unto the said "Robert Kerr, all the said lands and tenements, together with all "the buildings and appurtenances," &c. There was the usual affidavit of the sheriff, in the form prescribed by the Act, "that all the acts "required by law for sale of the lands and tenements mentioned in "the above deed were truly performed by the said sheriff." In addition to this, the sheriff was called as a witness by the defendant, and stated that the land was duly advertised-the only question raised by the counsel being, whether the notices of sale had been posted up in the several places directed by the Act, and whether the sheriff had exhausted all the personal property.

The first question is, as to the effect of the recital in the sheriff's deed. To give to this the effect which the defendant contends for, would render the deed a nullity; because at the time of filing the memorial, Robert Jamieson had no right in the land; it being then, and for nearly four years afterwards, Crown land. The sheriff could not levy upon an interest which did not exist; and we are bound to look to every part of the deed, and from the construction of the whole of it, to see whether there was any interest which the sheriff could seize and sell. It is a maxim of law "that the construction of deeds ought to be favorable, and as near to the apparent intent of the parties as possibly may be, and as the law will permit." Shep. Touch. 86. The intention of the law, and of the sheriff, as the officer of the law, clearly was that the deed should convey to the lessor of the plaintiff all the right and interest which Robert Jamieson had in the land, and which was bound by the judgment and execution; and this is clearly expressed in the operative part of the deed, even if it is doubtful by the recital. Authority is not wanting to show that the recital in a deed is not conclusive, because it is no direct affirmation. Co. Lit. 352 b. Without, however, going to the full extent of this doctrine, which may be doubted (see Carpenter v. Buller, 8 M. & W., 212), we think that where the deed itself, read by the light of the other facts proved, shows that the recital is a clear mistake, it ought not to be allowed to defeat the operation of the deed. Thus, in Foote v. Berkly (1 Lev. 234), it was held that if a lease is misrecited, and then the land comprised in it is granted, habendum for twenty-one years after the expiration of that lease; it is a good grant for twenty-one years after the expiration of the lease, notwithstanding the misrecital. And in Shep. Touch. 77, it is said: "If a fi. fa. come to a sheriff to levy a debt, and he by writing "recite that the defendant hath a term of years, and doth suppose