The Estate of Mary Sampson v. John Prince, 2003 NSSC 65

IN THE SUPREME COURT OF NOVA SCOTIA Citation: The Estate of Mary Sampson v. John Prince, 2003 NSSC065 Date: 20030325 Docket: 192588 Registry: Sydney Between: The Estate of Mary Sampson Applicant v. John Prince Respondent Judge: The Honourable Justice Frank Edwards Heard: March 24, 2003, in Sydney, Nova Scotia Written Decision: March 25, 2003 Counsel: Robert Sampson, Esq., for the Applicant John Prince in person By the Court: [ 1 ] The Plaintiff Applicant applies for an Interim Recovery Order pursuant to Civil Procedure Rule 48.

The Application is with respect to the land and building situated at 237 Kings Road, Dominion, Cape Breton Regional Municipality, Nova Scotia (the property). [ 2 ] The Applicant is the Estate of Mary Sampson. Ms. Sampson died on July 30, 1992. Ms. Sampson had lived on the property with her husband, Fred Sampson, from 1936 until his death on November 29, 1967. She continued to live on the property until her death in 1992. [ 3 ] Some time prior to 1976, Ms. Sampson began to live in a common-law relationship with Malcolm Prince. On March 1, 1976, Ms. Sampson executed a deed to herself and Mr.

Prince thereby creating a joint tenancy with respect to the property. That deed was duly recorded on March 8, 1976. On June 14, 1976, Ms. Sampson and Mr. Prince executed a mortgage regarding the property in favour of the Reserve Mines Credit Union Ltd. I suspect that the creation of the joint tenancy was connected to the mortgage financing.

[ 4 ] In any event, Mr. Prince executed a warranty deed in Ms. Sampson’s favour on either March 1 or March 4, 1976. The deed effectively extinguishes the joint tenancy created by the March 1, 1976 deed executed by Ms. Sampson. This deed was not recorded until April 3, 2002, when it was found by Ms. Sampson’s son, Aeldred Sampson, who is now administrator of his mother’s estate. [ 5 ] Aeldred Sampson says that his mother had told him about the unrecorded deed from Mr. Prince shortly before her death. He says that his mother wanted to ensure that Malcolm Prince could live in the property until his death. When Mr.

Prince died on February 5, 2002, Mr. Sampson located the deed and had it recorded. [ 6 ] The Defendant/Respondent, John Prince, is the son of Malcolm Prince. He says that he moved into the property with his father about a year and a half before his father’s death. John Prince produced a will dated November 21, 2001 signed by his father. The will leaves “all my property and dwellings to my son.” John Prince says that it “makes no sense” that his father would have conveyed his interest in the property back to Ms. Sampson. He notes that Ms.

Sampson and his father mortgaged the property on several occasions subsequent to 1976. [ 7 ] It is clear that Malcolm Prince must have forgotten about the deed he signed in March 1976. For the purposes of this interim application, I am satisfied that Mary Sampson wished to retain title in the property in her name alone. I note that on May 15, 1980, solicitor Robert Crosby forwarded a deed “from Malcolm Prince to yourself” to Ms. Sampson. The transmittal letter states “I would advise that you keep this document in a safe place.” I am satisfied that this is the March 1 or 4, 1976 deed signed by Malcolm Prince.

This letter is confirmatory evidence of Ms. Sampson’s intention to retain title in her name alone. [ 8 ] The deed itself is evidence that Malcolm Prince divested himself of any claim to title in the property. Therefore, when Malcolm Prince made his will on November 21, 2001, he had no title in the property to bequeath to the Respondent, John Prince. [ 9 ] John Prince has no claim to the property. The fact that the 1976 deed from his father to Ms. Sampson was unregistered until April 2002 is irrelevant to John Prince’s claim.

He is not a person “claiming for valuable consideration without notice” ( Registry Act , s. 18). [ 10 ] I am therefore allowing the application. [ 11 ] At the conclusion of the hearing, Mr. Prince indicated that he has left the dwelling on the property without heat. He claims to have been unable to afford more fuel oil. Consequently, the water pipes in the house have frozen. In addition Mr. Prince has allowed the fire insurance to lapse. The property is therefore at immediate and considerable risk. Mr. Prince is no longer residing on the property.

I am therefore signing the Recovery Order and having it issued immediately. [ 12 ] The Applicant is the successful party and is entitled to its costs. The application was not straightforward. The Applicant had to present a significant brief in which it responded to all possible arguments that could have been made by Mr. Prince. As well, several appearances were necessary to accommodate Mr. Prince’s attempts to retain counsel. Mr. Prince will therefore pay costs to the Estate of $750.00 in any event forthwith. J.