NUNN, J. 1990 S.H. 75281 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JANET MAIE MILLAR, OF Halifax, County of Halifax, Province of Nova Scotia, and SYLVIA MURIEL HUGHSON, of Ottawa, in the Province of Ontario, Executrices under the Last Will and Testament of George A. Bentley and Helen Pauline Bentley, both of Halifax, aforesaid, deceased, and JANET MAIE MILLAR AND SYLVIA MURIEL HUGHSON, in their own right and RONALD EARL BRIGGS, OF Halifax, County of Halifax, Province of Nova Scotia, and LINDA MARIE McNEIL, of Halifax aforesaid Defendants HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice G. A. Tidman, Trial Division, on December 20th, 1990 DECISION: January 23, 1991 COUNSEL: Mr. John Chandler, for the Plaintiffs Ms. Mary Meisner, for the Defendants 1990 S.H. 75281 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JANET MAIE MILLAR, OF Halifax, County of Halifax, Province of Nova Scotia, and SYLVIA MURIEL HUGHSON, of Ottawa, in the Province of Ontario, Executrices under the Last Will and Testament of George A. Bentley and Helen Pauline Bentley, both of Halifax, aforesaid, deceased, and JANET MAIE MILLAR AND SYLVIA MURIEL HUGHSON, in their own right and RONALD EARL BRIGGS, OF Halifax, County of Halifax, Province of Nova Scotia, and LINDA MARIE McNEIL, of Halifax aforesaid Defendants This is an application under the Vendors and Purchasers Act, c. 324, R.S.N.S., 1967 (the Act) on behalf of the vendors/plaintiffs (v/plaintiffs) for a declaration that an objection to title raised by the purchasers/defendants (p/defendants) is without merit. This matter first came before me as contested chambers application. Mr. Chandler, who represents the v/plaintiffs, at that time, agreed to obtain additional affidavit evidence in the hope of satisfying the p/defendants that the v/plaintiffs have good title to the property. Additional affidavit evidence has been adduced, but the v/plaintiffs still maintain their objection to title. Counsel agreed that in deciding the application, could consider all the additional material provided. After having heard counsel further on December 20, 1990, granted the application with written reasons for so doing to follow. The cause of the vendor's concern The property in question is residential lot with purported 40' frontage on the north side of Kaye Street in the City of Halifax. Kaye Street is part of built up residential area in the north end of Halifax known as the Hydrostone area, large part of which was destroyed in 1917 by the Halifax Explosion. Alex Bond, prior to 1913 by two separate deeds, one containing 80' of frontage and the other 60', acquired total of 140' of frontage on the northside of Kaye Street in Halifax. As the issue before me deals with missing lot frontage, for the purposes of this application will refer only to the frontage of the various lots conveyed. The 140' frontage acquired by Bond was bounded on the west by property of the Memorial United Church or its predecessors in title and on the east by one Trider or his predecessors in title. The p/vendors title search at the Registry of Deeds located conveyances of lots out of Bond or his heirs containing total of only 120' of frontage on Kaye Street. The remaining unaccounted for 20' creates the problem now before the court. The lot in question is described as having frontage on Kaye Street of 40', there is no dispute with the apparent adjoining property owners as to the boundaries of the land in question and the lot, in fact, has approximately 40' of frontage on the ground. The concern of Ms. Meisner on behalf of the p/defendants is that the Bond heirs, according to the recorded conveyances, retain ownership of the remaining 20' of frontage. From her search of the records at the Registry of Deeds she is not able to pinpoint the location of the 20' of missing frontage and fears that it could be up to one half of the frontage of the lot in question. Property history In 1913 Bond conveyed lot having 40' of frontage to Fred Killam. That lot which was apparently vacant at the time, was situate to the east of the lot in question. The lands to the west of the lot conveyed to Killam contained the Bond residence. The Killam residence was built on the 40' lot. Leota Bentley, daughter of Fred Killam, who lived in this property, states in statutory declaration that this lot which the Killams occupied was, in fact, wider than the 40 feet called for in the deed. Alex Bond was killed in the Halifax Explosion and at the same time both the Bond and Killam residences were destroyed. The Killam residence was immediately rebuilt. The Bond residence, however, was not rebuilt leaving vacant lot between the Killam residence lot and the United Church lot. In 1920, Bond's daughters, Bertha Wournell and Ethel Hockin, conveyed 25' of frontage to the United Church being the western portion of the vacant Bond lot, which apparently contained remnants of the foundation of the Bond residence which was destroyed by the Halifax Explosion. In 1931, Wournell and Hockin conveyed another 40' of frontage to Fred Killam. In 1937, Wournell and Hockin conveyed 15' of frontage to Fred Killam's widow, Rosina. This lot was described as adjoining the eastern boundary of the United Church property. The frontage of the lots described in the four conveyances out of Bond and his heirs totals 120', 95 of which were conveyed to the Killams. There are no further recorded conveyances out of Bond or his heirs. In 1941 Rosina Killam conveyed 16' of frontage to the United Church. property plan introduced as evidence dated June 26, 1940, and purportedly prepared by Provincial Land Surveyor by the name of Knight, shows the Killam property as having frontage of 116', 16' of which borders on the United Church property to the west. The 16' strip is designated on the plan as lot "to be conveyed to the United Church". Although the plan shows the remaining Killam property as having 100' frontage there are recorded conveyances to the Killams totalling only 95'. After Mrs. Killam's conveyance to the United Church of 16' only 79' of frontage remained recorded in the name of the Killams. Thus the missing frontage may actually be 21'. Objections to Title The objections to title put forward by Ms. Meisner on behalf of the purchasers are: 1. That the Bond heirs may have an interest in the lands in question, and, if not, 2. That the Crown may claim an interest in the lands under the Escheats Act R.S.N.S., 1989, c. 151. Mr. Chandler's answer is that the Killams and their successors have established good possessory title to the lot in question. Legislation Section (formerly Section 3) of the Act, under the terms of which this application is brought, provides: "A vendor or purchaser of any interest in land or his representative may, at any time and from time to time, apply in summary way to judge or local judge of the Trial Division of the Supreme Court in respect of any requisition or objection or any claim for compensation, or any other question arising out of or connected with the contract and the judge or local judge may make such order upon the application as appears just, and refer any question to referee or other officer for inquiry and report." Is this proper application under the Vendors and Purchasers Act? Ms. Meisner on behalf of the p/defendants argues that this is not proper application under the Vendors and Purchasers Act and submits that title to the lot must be perfected by an application under the Quieting of Titles Act. She states that this court has expressed conflicting views as to whether possessory title may properly be determined under the Vendors and Purchasers Act. She says that, although Parsons v. Smith (1971), N.S.R. (2d) 561 (S.C.T.D.) and Stevens v. MacKenzie (1979), 41 N.S.R. (2d) 91 (S.C.T.D.) indicate that the issue of possessory title may be properly be dealt with under the Act, the later case of Keohane v. McNaulty (1989), 1989 CanLII 1493 (NS SC), 92 N.S.R. (2d) 261 (S.C.T.D.) seems to indicate otherwise. do not agree that Keohane changes the view of the law expressed in Parsons and Stevens. Davison, J. in Keohane, in an application under the Vendors and Purchasers Act, dealt with the issue of possessory title and, in fact, resolved that issue on the same basis as did Hart, J. in Parsons v. Smith, supra, and Glube, J. (as she then was) in Stevens v. MacKenzie, supra. It is para. 11 of Keohane that gives Ms. Meisner the difficulty she expressed. It provides in part: "The Vendors and Purchasers Act is intended to provide summary ruling as to whether an objection to title is valid and thereby remove confusion that may be created by the filing of frivolous objections to title. Applications should be confined to this narrow focus. There are other statutes available for declarations of title statutes which have built‑in protection for providing notice to interested persons and to permit the intervention of those persons. Foremost among those statutes of course, is the Quieting Titles Act." In my view, Davison, J. was giving very good advice by suggesting that party with highly doubtful title to property rather than risking an unsuccessful application under the Vendors and Purchasers Act should go directly to more recent legislation designed to cure title, such as the Quieting Titles Act. While it is true that applications under the Vendors and Purchasers Act can determine only if an objection to title is valid, it is also true that an applicant under the Act who is able, on balance of probabilities, to prove good possessory title is entitled to the relief sought, in this case, finding that the objections to title are invalid. The wisdom of the advice of Davison, J. is shown in the final outcome of all three cases referred to by Ms. Meisner in which the applicants all failed to prove possessory title. The Law In all of those same three cases the standard used in proving good possessory title is that set out in the following para at p. 297 of Armour on Titles, (3rd ed.): "The declarations or affidavits to prove possession should not be confined to general statements that the trespasser has been 'in possession' or 'occupation'. There ought to be evidence of the actual facts which are relied upon as constituting the possession or occupation under the Statute. Thus the person in possession should show whether the land has been fenced and whether that is what is relied upon; whether it has been resided on, and if so, whether continuously or at intervals; whether it has been cultivated, and how whether by continuous occupation or by taking crops off and leaving the land vacant between visits. In all cases the purchaser should be put in possession of the actual facts, so that he may exercise his judgment upon their effect, instead of stating the effect, leaving him in ignorance of the facts upon which the vendor relies." Objection #1 The Evidence of Possession George Bentley acquired the lot in question in 1957 from Killam heirs. The lot was vacant until he built his residence on it in 1961. Ms. Meisner does not dispute that there has been open, notorious and continuous possession by the vendors and their title predecessors since that time. Her concern, is that the time period between 1961 and the present does not establish the 40 year period of such possession required by the Limitation of Actions Act (c.258 R.S.N.S. 1989) in order to defeat another claim of ownership. Several statutory declarations containing allegations of possession during the time in question were submitted by Mr. Chandler. Leota Bentley, sister‑in‑law to George Bentley and daughter of Fred and Rosina Killam, in two separate statutory declarations deposed to acts of possession of the lands in question. She states that she is now 78 years of age and lived in the Killam home with her parents on the lot adjacent to the east of the lot in question continuously from 1913 until her marriage in 1936. She says she lived in Dartmouth from 1936 until 1950, but during that time "frequently" and "regularly" visited the Killam homestead being the lot in question and the adjacent residence lot. She says she lived outside the Province from 1950 until 1965, but returned every summer and stayed with her mother at the homestead property. She says that her father, Fred Killam, mother Rosina, brother‑in‑law George Bentley, and his wife Pauline, all of the owners of the property, which included the lot in question during the time in question, are now deceased. She says Fred Killam died in 1936. In her first declaration Mrs. Bentley deposes in para 11: "11. THAT since at least 1931 until 1957 when the property on Kaye Street was conveyed to George A. Bentley, my father and mother and my mother after my father's death owned and continuously occupied openly, visibly and notoriously the entire lands designated R. Killam on Kaye Street shown on the plan attached as Schedule "B" extending northward to the mid point of the block outlined in red thereon, and my father and my mother after my father's death maintained home, garden, lawn and outbuildings thereon as well as fence on the mutual boundary with the Church and, subsequent to 1957, George A. Bentley and Helen Pauline Bentley owned and occupied the lands designated R. Killam on Kaye Street on the plan attached as Schedule "B" and in particular the subdivided portion designated Lot on the plan attached as Schedule "A" until the time of George Bentley's death in 1987 and by Pauline Bentley until the time of her death in 1990." In her second declaration she deposes in para's 11 through 14: "11. THAT during his lifetime my father owned and operated Nova Scotia Nursery and during the lifetime of my father and mother, they owned the properties designated R. Killam and M.A. Wickwire on the Plan of R. Killam Property, Knight, P.L.S., dated 1940, copy of which is attached hereto as Schedule "C". 12. THAT there was driveway to the west of our house (as referred to in paragraphs and herein), west of the driveway was lawn, and west and north of the lawn were the arbors and rose shrubery as refered (sic) to in Paragraph 13 herein, and further west of that was approximately fifteen (15) or sixteen (16) feet of "under‑utilized" lands and which under‑utilized lands were conveyed by my mother to the Church in 1941, by the Deed referred to in paragraph herein and which sixteen feet (16') area is shown on Schedule "C" as the lands "To be conveyed to U. M. Church". To the west of this fifteen feet (15') piece of land was the Church property, as refered (sic) to in paragraph herein. 13. THAT prior to 1931, my father planted large number of rose bushes and other shrubs on the lands west of our home in the area which is designated Lot on the plan attached as Schedule "A". The rose bushes and other shrubs remained until my brother‑in‑law George Bentley acquired the property. Although there were no buildings per se on that particular area, my father built many arbours and wooden walkways in the area which is designated as Lot on the plan attached as Schedule "A", and built swing and frame on that portion of property. He also constructed walkway in the rear of the Lot area going up to the Church property (my father was one of the Trustees of the Church). Father also planted raspberry bushes along the rear of the entire property. My family and friends very much enjoyed and openly used this area and have numerous photographs of the area as described herein. 14. THAT my father, nurseryman, very much maintained this area on regular and frequent basis and after his death, my mother continued to do so although probably in less professional way than my father." The plan to which she refers as Schedule "B" to her first declaration, and as Schedule "C" to her second declaration is designated "Plan of R. Killam property". It is signed by one Knight (whose initials are unintelligible) P.L.S. and is dated June 26, 1940. It shows the R. Killam property as having 100' frontage on the north side of Kaye Street and being bounded on the west by 16' frontage strip designated to be conveyed to the United Memorial Church which is bounded on its west by the United Church property. The Knight plan shows the Killam lot bounded on the east by lot designated "C. Trider" which extends eastwardly 80' to the intersection of Albert and Kaye Streets. The western half of that lot is now owned by Morris Moore who also provided statutory declaration. In the declaration he states that he has resided on his Kaye Street property since 1941 and has always believed that his property was bounded on the west by the Killam/Bentley property. In paragraphs and of his statutory declaration he deposes: "3. THAT for as long as have resided on Kaye Street, George A. Bentley and Helen Pauline Bentley and their predecessors in title owned and occupied all the lands and premises westward from the point hereinbefore mentioned to the eastern boundary of lands of United Memorial Church defined by chain link fence running northwardly from Kaye Street to the southern boundary of Young Street, which distance along Kaye Street am informed by review of the plans attached hereto as Schedules "A" and "B" is 100 feet. 5. THAT the lands designated R. Killam on the plan attached as Schedule "B" and G. Bentley on the plan attached as Schedule "A" were occupied continuously, visibly, openly and nortoriously by George Bentley and Helen Pauline Bentley and in particular Lot as shown on the plan attached as Schedule "A" upon which George Bentley built his own home and know of no claim adverse to the ownership of George Bentley and his predecessor in title for the 49 years and upwards that have lived at 5321 Kaye Street." Also in evidence is the statutory declaration of William Orr. In it he states that he is 78 years old, and has been involved with the United Memorial Church in various capacities since 1920, including as church elder which he still is. He states further that in his memory the land between the church property and the Killam residence was used as driveway, lawn and gardens until George Bentley built his house around 1960. Mr. Orr states that he knows of no dispute concerning the location of the boundary line between the Church and Killam properties. Janet Millar, daughter of George Bentley, declares by affidavit that in 1957 her father bought from the Killam heirs lot which includes the lot in question. She says that she resided in the house on the lot adjoining the lot in question (referred to as the Killam house) until she moved into the new residence George Bentley built on the lot in question in 1961. Ms. Millar, who states she was born in 1946, provides in para's and of statutory declaration: "3. THAT when was about or years of age had occasion to visit the property on the north side of Kaye Street when it was owned by Rosina Killam. My Aunt Leota and Uncle Ken Bentley had come home to Nova Scotia for holiday visit and had spent week or so in the valley visiting our family and they asked me to go with them and their daughter, Barbara, to spend week with Aunt Leota's mother, Rosina Killam, in Halifax. We stayed in the building shown on the plan attached hereto designated as four unit apartment building and now known as 5329 Kaye Street. 4. THAT remember that the lands to the west of the Killam house extended in gradual upward slope to the base of hill. The hill rose sharply to plateau and recall that the hill was mowed at that time and in the years subsequent was mowed from time to time by church officials. The base of the hill was the western limit of the Killam property and in later years was the western boundary line adjacent to which my father built house in 1961. can remember that the land between the Killam house and the base of the hill consisted of type of garden with many shrubs and spaces of law interspersed with patches of garden in and around through which pathways ran and upon which we as children used to run. It is my recollection that the gardens were tended enough to know that there was someone who cared and it was my understanding that the gardens belonged to Rosina Killam, who was at that stage an elderly woman." Assessment records from the Nova Scotia Archives of the lands between the Church and Trider (later Moore) properties were produced in evidence. One assessment card covers the period from 1920 to 1947. On the card the titles "Estate of Alex Bond" and "Kaye" appear in the spaces respectively designated "owner" and "street". In the space designated "street no." the word "lot" rather than civic number is inserted which indicated that the land was vacant. For the year 1920‑21 the land assessment is shown as "1200". It fluctuates over the years reducing to "400" by 1947. Reductions in assessment coincide with the transfers of land from the Bonds to the United Church in 1920 and to Fred Killam in 1931. For 1947 and subsequent years the assessment is transferred to new card in the name of Rosina Killam. The former card in the name of the Estate of Alex Bond contains the notations "to Rosina Killam July 25/38" and "16' to Church Sept. 3/41". Since the last conveyance out of the Bond heirs was to Rosina Killam by deed recorded July 25/38 and the 16' frontage was conveyed to the Church by Rosina Killam by deed recorded Sept. 3/41 this suggests that the practise in the assessment office on property transfers may have been, at least in some cases, not to transfer the property assessment to card in the new owner's name. This practise is further suggested by the assessment card for #29 Kaye Street in the name of Fred Killam. It contains the notation "transferred to Rose M. Killam by will" and although Fred Killam died in 1936, the assessment was not transferred to new card in the name of Rosina M. Killam until 1947, the same year the assessment from the card in the name of the Estate of Alex Bond was transferred to new card in the name of Rosina M. Killam. The assessment records indicate that all of the property on the north side of Kaye Street between the Morris Moore property and the Church property, subsequent to 1946, was assessed to Rosina Killam and later to George Bentley. Findings re Objection No evidence was adduced to contradict the allegations made in the several statutory declarations submitted by Mr. Chandler and none of the declarants were cross‑examined on the evidence contained in the declarations. In deciding that the v/plaintiffs have established good possessory title to the lot in question, find the following elements of proof of possession have been established from the evidence: 1. The lot has been assessed for municipal tax purposes in the name of Rosina Killam and her successors in title since at least 1946. The lot and the adjacent Killam house lot were occupied by Fred and Rosina Killam openly and continuously from at least 1931 until the property was sold to George Bentley in 1957. During that time period the lot in question was used as garden, lawn and driveway and fence designated the mutual boundary between the Killam and United Church lands. Fred Killam, prior to 1931, had planted rose bushes and other shrubs and constructed swing and fence on the lot in question and had constructed and used walkway on the lot to the adjoining church property. This evidence is set out in the statutory declarations of Leota Bentley and is supported by the evidence set out in the declarations of Janet Millar, William Orr and Morris Moore. 2. There is no evidence of any claims by others against the lot in question. 3. The plan of property dated 1940 showing lands including the lot in question, indicates that the lands were surveyed by Provincial Land Surveyor in 1940 and that the lot in question was then owned by Rosina Killam. That plan, the later plan dated 1961, the assessment records referred to, and the evidence contained in the statutory declarations are all consistent with occupation and ownership by Rosina Killam and her successors in title. Conclusion Objection I am satisfied on the basis of the evidence submitted that the vendors and their predecessors in title, namely, the Killams and the Bentleys, by open, notorious and continuous possession since at least 1946, a period in excess of 44 years, have established a good and marketable possessory title to the lot in question. state "since at least 1946" because that is the year in which the assessment for the lands was transferred to new card in the name of Rosina Killam. However, the evidence also indicates that such possession has been exercised since at least 1938 when the 15' strip was transferred from the Bond daughters to Rosina Killam and suspect since as far back as 1931 when the 40' lot was conveyed to Fred Killam from the Bond daughters. Objection Ms. Meisner submits that even if find that possessory title has been established by the required proof of possession for more than 40 years this would not, under the Limitation of Actions Act, defeat claim by the Crown under the Escheats Act R.S.N.S. 1989, c. 151 against whom such possession must be proved for period of at least 60 years. Section 2(b) of the Escheats Act provides: "The Governor in Council may direct the Attorney General to take proceedings to revest in the Crown ..... (b) any or all lands of persons dying intestate and leaving no heirs or persons entitled to the said lands under the laws of the Province." Therefore, before such claim would threaten title to property the Provincial Cabinet, with the Lieutenant Governor's consent, must direct the Attorney General to take revesting proceedings. Even if this came to pass it would be difficult, if not impossible, to determine the exact location of the 20 or 21 missing feet to which the Crown must lay claim in order to defeat the present possessory ownership. No one to date has been able to pinpoint the location of the missing 20' or 21' of frontage. One of the two original lots conveyed to Alex Bond contained 60' of frontage on Kaye Street. The first conveyance to Fred Killam in 1913 described lot having 40' frontage on Kaye Street, although, as stated by Leota Bentley, that lot was in fact much wider than 40'. Indeed, the intention may have been to convey all of the frontage of 60' described in the original lot rather than 40' as described in that first conveyance. Although mere speculation, suspect that the mystery of the missing frontage bears on that Killam residence lot, rather than on the lot in question. Conclusion Objective In any event the possibility of such a claim by the Crown, as Mr. Chandler suggests, is so remote as to be frivolous and as such is, therefore, not a valid objection to title. Having found that neither objection to title is valid, the application is granted, but without costs. J. Halifax, Nova Scotia January 23, 1991 1990 S.H. 75281 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JANET MAIE MILLAR et al and RONALD EARL BRIGGS et al
This was an application by the plaintiff vendors for a declaration that an objection to title raised by the defendant purchasers was without merit. For the plaintiffs, that the Vendors and Purchasers Act can be used to establish possessory title, and the plaintiffs had succeeded in demonstrating 'open, notorious and continuous possession' of the property for over 40 years. The possibility of a claim by the Crown under the Escheats Act was ruled so remote as to be frivolous.