1 1880 CHURCH v. FENTON. See also Hughes v. Chester & Holyhead Railway (1); and the remarks of Turner, L. J., in the same direction: This is an act which interferes with private rights and private interests, and ought, therefore, according to all decisions on the subject, Henry, J. to receive a strict construction, so far as those rights and interests are concerned. This is so clearly the doctrine of the court that it is unnecessary to refer to cases on the subject. They might be cited almost without end. I shall hereafter apply this doctrine, and particularly when I come to refer to section 155, and the absence of evidence of a sale within the purview of that section. By an Act of the Illinois Legislature it was declared that the deed should vest a perfect title in the purchaser, unless the land shall be redeemed according to law, or the former owner shall show that the taxes were paid, or that the land was not subject to taxation; but the Supreme Court of that state, in giving a construction to that statute, state the rule of the common law as to the burthen of proof and the strictness required in this class of cases, and that under that statute several preliminary facts to a legal sale are to be inferred by the deed, and the responsibility of proof shifted from the purchaser to the original owner, but the court deny that that statute will by any fair construction warrant the opinion that the auditor (here the Treasurer) selling land without authority, could by his conveyance transfer the title of the rightful owner. In that case it was not shown that the land had been advertised as prescribed by the statute. The court held that "the publication of notice of sale as required by law was not one of those facts inferred from the deed, nor is the proof thereof thrown upon the former owner. Without proof of this fact, the auditor's deed was not evidence of the regularity and legality of the sale, and consequently conveyed no title to the purchaser." The (1) 7 L. T. N. S. 203. case before us is a much stronger one, for, if my contention as to the warrant is right, there is not merely the absence of proof of some necessary fact, but a deed from a party without legal authority to convey. To conclude that a deed of land in the words of the section "sold for arrears of taxes" is not to be questioned at all after two years is, to my mind, a monstrous proposition. I can imagine dozens of cases where the most unjust and improper results would necessarily flow from such a conclusion. It will be only necessary to state one case. It is largely the interests of non-resident owners that have been, or will be, affected. Without any knowledge of arrears existing a sale for (alleged) arrears of taxes takes place by no one authorized to make it, and the treasurer subsequently gives a deed. It would certainly be monstrous to hold that such a conveyance would pass the title, and still the clause in the statute, if literally construed, would make the conveyance available for that purpose. The clause must mean a sale as provided for, and it therefore becomes necessary to show by extrinsic evidence that a sale took place. To invoke the aid of the statute, such is necessary, but here we have no evidence at all that any sale took place. The only witness who refers to the sales says he was not treasurer in 1870, when the first is alleged to have taken place; does not say he was present; no date given or purchaser named, or who the land was sold by. There is no evidence to show the sale took place at the time and place named in the advertisements, and it is equally defective as to the second alleged sale. The newspapers to show the advertisements required by the statute were not put in evidence, except four numbers of the "Gazette" in 1873. No paper or advertisement for the sale in 1870 was produced. No assessment rolls were put in to show the land was taxed, and, in fact, little but hearsay and improperly received evi 1880 CHURCH บ. FENTON. Henry, J. 1880 CHURCH v. FENTON. Henry, J. dence of any taxing at all. In my opinion, it would be a mockery of justice to deprive a man of his real estate. by such evidence. In addition to the objections I have suggested, I think it is necessary to show a legal sale by extrinsic evidence, that is, that it was made by the proper officer at the time and place mentioned in the advertisements, and that the grantee or his assignee became the purchaser. The statute provides that the deed shall be made to the purchaser at the sale or his assigns. The conveyance of the 98 acres is to David Keltie, who is represented in the deed as the assignee of Fenton, who in it is alleged to have been the purchaser. To this there are two objections. If Fenton was the purchaser, that fact should have been proved, otherwise than by the mere statement of it in the deed, and secondly no assignment from him to Keltie was shown in compliance with the statute. suit he was entitled to Until the subsequent deed If, however, the appellant is considered as not entitled to recover for the 93 acres, I can see no reason why he should not recover for the remaining two acres. the commencement of the recover for those two acres. to the respondent, he had no defence for them. By the common law, as well as by the statute of Ontario, he was entitled to a judgment for his costs; and how he can be deprived of them I must say I have failed to dis cover. By section 31, c. 51, of the Revised Statues of Ontario, it is provided that : In case the title of the plaintiff, as alleged in the writ, existed at the time of service thereof, but had expired before the trial, the plaintiff shall notwithstanding be entitled to a verdict according to the fact, that he was entitled at the time of serving the writ and to judgment for his costs of suit. This was adopted from C. S. U. C. c. 27, sec. 22. Clause 1880 v. 155 does not in any way affect his right to recover pro tanto, and as, I think, the necessary proof of the legality CHURCH of the sale or of the rating was not given, and the warrant and list were defective, he is, under any circumstances, entitled to recover for the two acres. The views I entertain and have expressed as to the operation of section 155 are in accordance with principles laid down by Blackwell on Tax Titles before alluded to in the third chapter, founded on and derived from judgments and decisions of the Supreme Courts in the States of New York, Illinois, Michigan, Tennessee and Ohio. Those judgments are cited as unanimous in every instance, and are recommended by the able manner in which the cases were considered and disposed of, and in the absence of authorities to the contrary I feel quite safe in following the decisions, After full and mature consideration I think the appellant is entitled to recover for his whole claim; that the appeal should be allowed and judgment given in his favor with costs. TASCHEREAU, J., concurred in dismissing the appeal. GWYNNE, J.: I concur that the appeal should be dismissed, but I desire to add, that I am unable to perceive any bearing that my judgment in McKay v. Chrysler can have upon the present case. I should be very much surprised if anything could be found in that judgment in support of the position that it is competent for this court to suggest, and to act upon the suggestion, that the case of either a plaintiff or defendant was defective for insufficiency of evidence upon a point, not only not made a ground of appeal, but not suggested even in argument as an existing fact in any of the courts through which the case was passed, nor at the trial; if there had been FENTON. Henry, J. 1880 v. FENTON. any foundation for the suggestion, no doubt, counsel CHURCH Would have made the point. As to the quotation which has been made from my judgment in McKay v. Chrysler, those observations were applied by me to a point which did arise in that case, and obviously they can have no bearing upon this case, wherein no such point has been made. Gwynne, J. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR The appellants issued a marine policy of insurance at Toronto, dated the 28th November, 1875, insuring, in favor of the respondent, $3,000 upon a cargo of wood-goods laden on board of the barque Emigrant, on a voyage from Quebec to Greenock. The policy contained the following clause: "J. C., as well in his own name as for and in the name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all, doth make insurance, and cause three thousand dollars to be insured, lost or not lost, at and from Quebec to Greenock, vessel to go out in tow." The vessel was towed from her loading berth in the harbour into the middle of the stream near Indian Cove, which forms part of the harbour of * PRESENT.- Ritchie, C. J., and Strong, Fournier, Henry, Taschereau and Gwynne, J. J. |