in October, 1913, Ginther had mortgaged the land in question to one A. M. Grace for the sum of $3,500, providing for interest at 12 per cent per annum. Subsequently to this, defendants or sub-purchasers from them, made payments from time to time to Ginther, in all amounting to $1,694.25 in excess of the balance due and owing after deducting the amount owing on the Grace mortgage and which, rightly, should have been applied on said mortgage. In 1915, the plaintiffs entered action against Ginther for specific performance, and in January, 1916, also commenced action against the defendants McNeill et al for specific performance of their agreement. The first action resulted in an order vesting the land in question in the plaintiffs free from all encumbrances except the said mortgage and certain caveats, which caveats do not in any way affect the case before us. By an order of October 25, 1917, a declaration for specific performance was made against the defendants McNeill et al. In determining the amount of arrears due under the contract there was added to the amount mentioned in the original statement of claim the said sum of $1,694.25 alleged to have been overpaid to Ginther. The order was subsequently opened up and defendants allowed to defend as to this, and, also permitted to set up want of title in the plaintiffs inasmuch as they were not seized of the coal rights which, as before mentioned, were reserved to the Canadian Pacific Railway Company and also to allege that there was a mortgage to A. M. Grace against the land. The plaintiffs, in consequence, were allowed to amend their statement of claim by adding a claim for the over-payment to Ginther and they also pleaded waiver by the defendants of defect in title. These were the issues tried before my brother McCarthy, whose judgment is appealed from. It appears in evidence that the defendants McNeill et al agreed to sell the lands to a Winnipeg company called "The Lands & Homes Limited." From time to time the defendants, and their purchasers, paid money to Ginther direct under the authority of the agreement of February 5 and about 25 transfers were executed by Ginther in favour of various 14-A.L.R. App. Div. 1918 Crump et al parties who were purchasers from "The Lands & Homes Ltd.," in exchange for the moneys so paid. Apparently the transfers were not forwarded but were registered in Alberta McNeill et al and the duplicate certificates of titles only were sent direct to Hyndman, J. the transferees or to the Lands & Homes Ltd. in Manitoba. V. It also appears in evidence that, after said Crump heard of the Grace mortgage, he told one of the defendants to “protect the mortgage," and it is in consequence of this "warning" that plaintiffs now claim to be entitled to the over-payment from the defendants. The learned trial Judge found against the respondents as to this alleged over-payment to Ginther but decreed specific performance without compensation in respect of the admitted defect in title holding that such title had been accepted by the defendants. I think the learned trial Judge properly disallowed plaintiffs the $1,694.25, for, under the tri-partite agreement the defendants' right and duty were to pay any money, certainly in excess of the moneys actually paid, direct to Ginther and were entitled to continue so paying until properly notified not to do so longer. Their only concern, as between them and Crump, was to pay the balance due on their agreement, at least up to the amount stipulated in the tri-partite agreement as owing Ginther, but they could not be expected to concern themselves with matters affecting strictly only the plaintiffs and Ginther. I do not consider the so-called "warning" at all sufficient to impose any obligation on the defendants to withhold the moneys in question from Ginther and I would, therefore, dismiss the plaintiffs' cross-appeal in respect of this claim. With reference to the mortgage against the property it has been held frequently in this Court that the existence of a mortgage, under the circumstances of this case, is a matter of conveyancing, and not of title, and so long as the vendor is in a position to give title when the time for performance arrives such a mortgage does not deprive him of his right to a decree for specific performance. Moreover it is on record here that the mortgagee is willing to grant a discharge on payment of an amount which is less than the sum owing on the agreement for sale. The defendants must, I think, fail on this point. The only remaining question, therefore, is this: Are the plaintiffs entitled to a decree for specific performance without compensation to the defendants in view of the admitted defect in the title by reason of absence of coal rights? The defendants' counsel on the argument stated that he did not ask for rescission, restitutio in integrum not being possible, but for compensation only. The plaintiffs' contention is that the defendants waived their rights to compensation, having accepted the plaintiffs' title. I find nothing in the evidence which discloses any express agreement to forego rights to the coal and consequently the case must rest entirely on waiver, which is the plaintiffs' only plea on this point. In order, then, for the plaintiffs to avoid a decree for compensation it must be shown that there was, in fact, a waiver by the defendants of their rights in this regard. The agreement, not having provided for any reservation of the coal, in the absence of agreement or waiver, the defendants, as a consequence of various decisions in this Court, are entitled to the coal or its value. (See Innis v. Costello, 11 Alta. L.R. 109; [1917] 1 W.W.R. 1135; Universal Land Security Co. Ltd. v. Jackson, 11 Alta. L.R. 483; [1917] 1 W.W.R. 1352; Pugh v. Knott, 12 Alta. L.R. 399; [1917] 3 W.W.R. 95). Waiver is defined as the act of waiving, or not insisting on some right, claim or privilege; a foregoing or giving up of some advantage, which but for such waiver, the party would have enjoyed; an election to dispense with something of value, the giving up, relinquishing, or surrendering some known right; an intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment or waiver of such right; waiver involves both knowledge and intention. It is distinguishable from estoppel inasmuch as estoppel may arise where there is no intent to mislead; it depends upon what one himself intends to do; estoppel depends rather upon what he caused his adversary to do; waiver involves the act and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice or into an altered position; an estoppel always involves this element. (See 40 Cyc. 252, et seq.) App. Div. 1918 Crump et al V. McNeill et al Hyndman, J. It will be seen that waiver involves knowledge and intention. In the case before us it is admitted that, under the terms of the defendants' agreement, they are entitled on payment in full to a transfer of the whole of the lands, including the mineral rights. Then have they "waived" their claim to the coal? I have read the evidence carefully to ascertain whether the defendants expressly or by conduct showed such intention and I am bound to say that I have failed to discover any. As a matter of fact there is no evidence upon which one can say that they ever knew the state of plaintiffs' title until the amended pleadings were filed. If such is the case then there could not possibly have been any waiver prior to that time and there is nothing in the evidence to show any intention to forego their rights subsequently. A clear and unequivocal intention must be shown by the evidence. (40 Cyc. 263.) In Hughes v. Jones, 31 L.J. Ch. 83, at p. 89, 8 Jur. (N.S.) 399, 5 L.T. 408, 10 W.R. 139, Lord Justice Turner says: "Now this claim was filed on the 5th of March, 1858, and it would, I think, be rather a strong decision of the Court to say, when a purchaser is proved to have taken objections on the ground of the existence of leases in the month of October, 1857, that he is to be taken, without the clearest evidence, to have waived that objection before the month of March, 1858 -that in the short interval between those periods it is to be considered that there had been a change of intention. I do not, of course, say that it may not be so, if there be clear evidence upon the subject; but it would require very strong evidence to satisfy my mind that in that interval there had been a change of intention on the part of the purchaser, and that he was willing to waive the compensation. It must be always borne in mind, upon this question of waiver, that it is a question of waiving the rights to compensation to which the purchaser would be prima facie entitled. We must consider that the effect would be to give up absolutely a right which existed in him at the time when the objection was first taken." So far as I can see really the only fact the plaintiffs rely on to support their contention of waiver is that transfers from Ginther to sub-purchasers passed through defendants' hands and, therefore, it should have appeared to them from perusal of the transfers that coal was excepted. The evidence is very indefinite and vague as to just what did happen to the transfers; there is no certainty that the transfers, or any of them, ever were in the possession of any of the defendants or that they had any knowledge of their contents. It would seem to me that all they knew was that transfers were being executed by Ginther in favour of sub-purchasers, but, even if they actually saw the transfers in which the coal was excepted, that would not, by any means, necessarily imply that they expected to acquire the surface only or intended to waive their rights to coal in the remainder of the lands. I have come to the conclusion, therefore, that there was no waiver and that defendants are entitled, upon payment, to a transfer of the land not already transferred including coal rights, or on plaintiffs' failure to make such a title then in case of the latter there should be a reference to the clerk of the Court and when the amount of such compensation is ascertained the same should be set off against the plaintiffs' claim. If, on a final adjustment, it should transpire that the balance is in favour of the defendants judgment ought to be entered against the plaintiff for such amount. As to the lots already transferred I think the defendants should be held to have accepted title thereto and not entitled to compensation because of absence of coal rights, such transfers having been given and accepted under the terms of the agreement of February 5, to fulfill the obligations of the defendants to purchasers from them. The appeal should be allowed with costs and the judgment appealed from varied accordingly; defendants to have costs of the action, they having succeeded in the main issues. The cross-appeal should be dismissed without costs. Either party to have liberty from time to time to apply for directions as to the reference or questions arising therefrom. Appeal allowed with costs, and cross-appeal dismissed Wright and Wright, solicitors for plaintiffs, respondents. Laidlaw, Blanchard & Rand, solicitors for defendants, appellants. App. Div. 1918 Crump et al V. McNeill et al Hyndman, J. |