The British Columbia Reports 1896 Vol 3 PDF Download

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1896 edition. Excerpt: ... a person R, who H_ B_ Co' appeared on the title as the grantee of the lands under a deed made to 1: . him by K, subsequent to, and, as the plaintiffs' claim alleged, in fraud I: (;' I1: 'IsN(f' of the mortgage, which deed he had registered not as a fee, but as a charge against the lands. K had suffered judgment by default. Neither notice of the mortgage, nor want of valuable consideration for the deed were charged against R in the statement of claim, or negatived by him in his defence, in which he claimed that, under Sec. 31 of the Land Registry Act, his registered charge was entitled to prevail over the plaintiffs' unregistered charge, and also set up the Statute of Frauds. At the trial, R called no evidence, and maintained that the onus probandi to displace his prima facie statutory priority was on the plaintiffs, and that he was entitled tojudgment. Held, per W.u.KE.i, J., on motion for judgment, dismissing the action as against R, That his registered charge had a prima facie validity and priority, under Sec. 31, and that the onus of proof of want of consideration, fraud, or notice to him of the mortgage, was on plaintiffs. The Statute of Frauds is not a defense to an equitable mortgage. Held, by the Full Court on appeal: --Per Carmen, J.: That in the state of the pleadings and evidence, fraud on R's part could not be assumed by the Court, but that there should be a new trial to determine the question of the bonafides of the deed. Per MCCREIGHT, J.: That before the Statute the burden of proof would have been upon R to show that he made enquiries for the title deeds and gave valuable consideration for his deed from K, as being facts peculiarly within his knowledge and not of the plaintiffs, ...