Hunter v. Chafe, 2014 NLCA 44

Date: 201411 24 Docket: 13/49 Citation: Hunter v. Chafe , 2014 NLCA 44 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HERMAN HUNTER APPELLANT AND: IRIS CHAFE RESPONDENT Coram: Barry, White and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201206G0115 (2013 NLTD(G) 67) Appeal Heard: September 17, 2014 Oral Judgment Rendered: September 17, 2014 Written Reasons for Oral Decision Filed: November 24, 2014 Reasons for Oral Decision by White J.A. Concurred in by Barry and Harrington JJ.A. Counsel for the Appellant: Self-represented Counsel for the Respondent: James D. Hughes Q.C.

Reasons for Oral Decision White J.A.: [1] This is an appeal of the order of a judge of the Trial Division (General) declaring that the estate of Hedley Hunter be entitled toa one-third interest in the land that the appellant (Herman Hunter) transferred to himself from three estates of which he was appointedadministrator and then sold to G and R Contracting. The trial judge further ordered a full accounting and granted costs to the respondent(Iris Chafe), who is the daughter of Hedley Hunter. [2] At the conclusion of the appeal, the panel dismissed the appeal and indicated that written reasons would follow.

These arethose reasons. BACKGROUND [3] By Crown grant dated December 13, 1913, an area of just over 11 acres of land in Rocky Bay, (now known as Eastport), wasgranted to Mr. Richard Hunter, Mr. Hedley Hunter, and Mr. William J. Hunter. Hedley Hunter and William J. Hunter were RichardHunter’s only two males of six children. Hedley Hunter died in 1937, Richard Hunter and William J. Hunter in 1952, all intestate. [4] The appellant (being William J.

Hunter’s son, Richard Hunter’s grandson, and Hedley Hunter’s nephew) claimed that each ofthe original grantees held their interests in the granted land as joint tenants, with the right of survivorship applying so that WilliamHunter, as the last survivor, obtained full title by operation of law. Ms.

Chafe argued that while the original grantees owned the propertyas joint tenants, they subsequently severed the joint tenancy through a “course of dealing” that showed the parties’ intention was to holdthe land as tenants-in-common. [5] In October 2010, Herman Hunter applied to the court to be appointed administrator of the estate of his grandfather, RichardHunter; he also applied to be appointed administrator of the estates of William J. Hunter and Hedley Hunter. He named himself and hisfive siblings as next of kin in each of the applications and in one application named a cousin.

He included their consents with hisapplications. However, in none of the applications did he name Ms. Chafe (being Hedley Hunter’s daughter and only surviving directlineal descendant - granddaughter to Richard Hunter and niece to William J. Hunter). [6] In November 2010, the court granted all three of Herman Hunter’s applications appointing him administrator of each of theestates. As administrator, Herman Hunter acted as vendor of the land and sold it to himself as purchaser. In doing so, he signed threetimes in a representative capacity and the next of kin that he had named signed to confirm the sale.

The deed was registered onNovember 26, 2010 indicating a consideration of $1.00 and with an affidavit of value indicating a value of $500.00. [7] On November 24, 2010 Herman Hunter sold the land, in his personal capacity, to G and R Contracting for $150,000 by deedof conveyance which was registered the same day as the deed conveying the land to him. [8] During the spring of 2012 Ms. Chafe visited Eastport and saw the family lot being cleared.

She subsequently engaged legalcounsel and filed an originating application on August 24, 2012 claiming Hedley Hunter’s estate owned a one-third interest in the land. [9] The application was heard on March 5, 2013. Herman Hunter, who was self-represented, failed to appear but telephoned thecourt and informally requested a postponement citing bad weather conditions.

The applications judge denied his request and proceededwith the hearing in his absence. [10] The applications judge filed his reasons for decision on April 26, 2013 and found that the original grantees took possession ofthe land as joint tenants, but that their joint tenancy was subsequently severed by a course of dealing with the land that demonstrated thatthey intended to hold it as tenants-in-common. Hedley Hunter had built a private residence on the property and constructed a fencearound his home and gardens which, the applications judge found, severed the unity of possession requirement of joint tenancy.

Theapplications judge also found that tenancy-in-common would be consistent with a parental desire to provide for one’s sons. Further, inthe view of the applications judge, Herman Hunter’s actions regarding the sale of the land were consistent with each of the originalgrantees being a tenant-in-common and not a joint tenant. As such, the applications judge held that Hedley Hunter’s estate held a one-third interest in the land that Herman Hunter sold and ordered him to provide a full accounting of Hedley Hunter’s estate to Ms. Chafe. [11] On June 3, 2013 Ms.

Chafe filed an application with the applications judge to compel Herman Hunter to provide an accounting. He provided a hand-written document on June 7, 2013 that resembled an accounting. Ms. Chafe sought more detail and requested theability to examine him. Her request was granted and the applications judge set September 9, 2013 for the examination. [12] On July 11, 2013 Herman Hunter filed an application to stay the execution of the applications judge’s order pending appeal. His application was heard on August 29, 2013 and granted on September 9, 2013.

STANDARD OF REVIEW [13] In his factum, counsel for the respondent outlines the proper standard of review to be followed as set out by this Court in Ring v.Canada et al., 2010 NLCA 20, 297 Nfld. & P.E.I.R. 86 at paragraph 6: The standard of review applied by an appellate court depends upon the nature of the matter being reviewed. A pure question of law isreviewed on a standard of correctness and an appellate court is free to replace the opinion of the trial judge with its own. Findings offact, on the other hand, cannot be reversed unless the trial judge has made a palpable and overriding error.

A determination of whether alegal standard was met involves the application of a legal standard to a set of facts which is a question of mixed fact and law. A questionof mixed fact and law is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricableerror in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error inlaw and the applicable standard is correctness. These principles are well established: Housen v. Nikolaisen, 2002 SCC 33 ,[2002] 2 S.C.R. 235.

[ 14 ] In his notice of appeal filed with this Court, the appellant stated his proposed grounds of appeal as: - Was unable to attend court on March 5, 2015 due to bad weather and wished to be heard; - I believe my father to be the sole owner of said property; and - My family paid taxes on the land, not Miss. Chafe. [ 15 ] In his factum, the appellant states the issues in this case as: - The main issue in this case is to determine if the appellant (Ms.

Iris Chafe) has any legal right as it pertains to a property situated in Eastport, NL. - The other issue in this case is whether or not this would be considered a joint tenancy. [ 16 ] It appears that the appellant alleged both errors of fact and law giving rise to both standards of review - correctness in relation to the questions of law and a determination of whether or not the applications judge made a palpable and overriding error with respect to his findings of fact. ISSUES [ 17 ] On the hearing before this Court two issues were considered: 1) the impact of Mr.

Hunter’s request for a postponement, and 2) the nature of ownership of the land - whether or not the joint tenancy between the original grantees was severed. [ 18 ] On appeal the appellant asked that the Court reverse the applications judge’s decision. Request for Postponement [ 19 ] In a hearing by teleconference among the Chief Justice of this Court, Herman Hunter, and Mr. James Hughes Q.C. (counsel for Ms.

Chafe), which was arranged to get the matter set down for hearing, the Chief Justice noted to Herman Hunter that he had listed his inability to appear at the March 5, 2013 hearing as a ground of appeal in his notice of appeal but had failed to discuss this point in his factum. When the Chief Justice asked him whether he was abandoning this issue or whether he planned to nevertheless argue the point, he indicated that he was not pursuing this ground of appeal. [ 20 ] In her factum, Ms. Chafe does not respond to the question of the failure of Mr.

Hunter to appear at the hearing (and the decision of the applications judge to proceed in his absence) as it was not raised by Herman Hunter in his factum, and because during the conference call with the Chief Justice Herman Hunter indicated that he was not pursuing this point. [ 21 ] Further, on appearing before this Court for the hearing of the appeal, the chair of the panel also asked Herman Hunter his position on this issue.

He indicated that he relied on his factum (which he stated a friend had helped him with). [ 22 ] Herman Hunter was given opportunities to pursue this issue; he was asked by the Chief Justice in the conference call and indicated that he would not be pursuing it; there is nothing on the issue in his factum; and, he further affirmed his position when the issue was canvassed at the beginning of the hearing before this Court. [ 23 ] Had Herman Hunter sought to deal with the issue of the postponement he would have had to apply to present fresh evidence as to the weather conditions on the date the applications judge exercised his discretion by postponing the hearing of the application.

It would then have been for this Court to determine the fresh evidence application. [ 24 ] As the exercise of discretion to postpone by the applications judge was unchallenged on appeal, the appeal proceeded on the basis of the remaining issue. Nature of Ownership of the Land [ 25 ] In his decision the applications judge succinctly states the law relative to joint ownership of land: [6] The common law recognized four kinds of joint ownership of property, but only joint tenancy and tenancy in common are relevant to this matter and in these times.

In joint tenancy, the co-owners have identical interests because they take undivided possession of the same property under the same instrument for the same interest which vests in them at the same time; and the survivor of them takes the entirety.

In tenancy in common, the co-owners have undivided possession of the property but their interests need not otherwise be identical and the interest of each descends to his heirs [Anger, H.D. & Honsberger, J.D., Canadian Law of Real Property , 1959, Canada Law Book Company, Limited, 166]. [7] There are two distinguishing features of joint tenancies: the right of survivorship and the four unities. The four unities are of title, interest, possession and time.

Unity of title exists when all co-owners acquire their title under the same instrument; unity of interest exists when all co-owners have an interest in the property that is identical in nature, extent and duration; unity of possession exists when all co-owners are entitled to undivided possession of the whole of the property; and unity of time exists when the interests of all co- owners vest at the same time [ Ibid. ]. [8] At common law, when land was granted to two or more persons for the same interest and no words were added indicating they took it separately, they became joint tenants.

The presumption underlying this has been changed by statute in most jurisdictions, but not in this province. Typical of such legislation is section 13(1) of the Ontario Conveyancing and Law of Property Act [ RSO 1990, c. C-34 ]

which provides, as is relevant here: “Where … land … is granted, conveyed or devised to two or more persons, other than executors or trustees … it shall be considered that such persons … take as tenants in common and not as joint tenants, unless an intention sufficiently appears … that they are to take as joint tenants” [McClean, A.J., “Severance of Joint Tenancies”, 57 Canadian Bar Review, March 1979, page 3.]. [ 26 ] The law in the province of Newfoundland and Labrador remains as it is at common law.

Where there are no words setting out the nature of the holding of title, the presumption is that the title is held in joint tenancy. [ 27 ] In this case, the originating title document (the grant from the Crown) made no reference to the manner in which the land was to be held. Accordingly, a joint tenancy among Richard, Hedley and William Hunter was created. [ 28 ] The applications judge reviewed the law with respect to the severance of joint tenancies: [9] There are three ways in which a joint tenancy can be severed at common law.

The severance mechanisms, known as the three “rules”, date back more than a century and a half to Sir W. Page Wood’s decision in Williams v. Hensman [ (1861), 1 John & H. 546, 70 E.R. 862 (V.C.) ]: 1. Through one of the joint tenants’ unilateral actions on his own share, such as selling or encumbering it; 2. Through the co-owners mutually agreeing to sever the joint tenancy; and 3. Through any other course of dealing by which the co-owners convey their intention to treat their ownership as a tenancy in common [ Ibid , page 867].

Rules 1 & 2 are not relevant to this case but rule 3 is and it requires further discussion. [10] Courts applying rule 3 from Williams v. Hensman have focused, not surprisingly, on the meaning of “course of dealing”. The English Court of Appeal considered rule 3 in Burgess v. Rawnsley [[1975] EWCA Civ 2] and applied it to sever a joint tenancy created by deed and took away the right of survivorship from the surviving tenant. [11] Lord Denning, Master of the Rolls, said this about “course of dealing”: “…[A] ‘course of dealing’ need not amount to an agreement, express or implied, for severance.

It is sufficient if there is a course of dealing in which one party makes clear to the other that he desires that their shares shall no longer be held jointly, but in common. I emphasize that it must be clear to the other party” [ Ibid. ]. From the same case, this is Sir John Pennycuick’s understanding of “course of dealing”: “I do not think rule 3 in Vice Chancellor Page Wood’s statement is a mere sub-heading of the rule 2.

It covers only acts of the parties, including, it seems to me, negotiations which, although not otherwise resulting in any agreement, indicate a common intention that the joint tenancy should be regarded as severed” [ Ibid. ]. [ 29 ] The applications judge then summarized the law that applies in this province to the creation and severance of joint tenancies: [15] … 1. Joint tenancies are characterized by the right of survivorship and the four unities of title, interest, possession and time. 2.

Joint tenancies only exist if the co-owners acquire their title under the same instrument; have an interest in the property that is identical in nature, extent and duration; have an undivided possession of the whole of the property; and their interests in the property vest at the same time. 3. At common law, when land is granted to two or more persons for the same interest and no words are added indicating they take it separately, they become joint tenants. 4.

The presumption that two or more persons who take land granted to them for the same interest take it as joint tenants has been changed by statute in most jurisdictions, but not in this province. 5. There are three rules that described how a joint tenancy can be severed at common law: i. Through one of the joint tenants’ unilateral actions on his own share, such as selling or encumbering it; ii. Through the co-owners mutually agreeing to sever the joint tenancy; and iii. Through any other course of dealing by which the co-owners convey their intention to treat their ownership as a tenancy in common. 6.

The proof of intention contemplated by rule 3 does not require proof of explicit intention, communicated by each owner to the other(s), to sever the joint tenancy, for that would be an agreement which rule 2 covers; but may be inferred from a course of dealing between the parties, not amounting to an agreement to sever. [ 30 ] The applications judge heard, reviewed and accepted evidence as to how the original grantees treated their ownership of the land: [26] Iris Chafe is eighty-five years old. She lives in St. John’s, NL but is formerly of Eastport. Ms.

Chafe was born in a house that her father, Hedley Hunter, built on the granted land and she lived there until she was twelve years old. She said her father died in 1937 and she and her mother, Maude, stayed in the home for a couple of years after her father died. Ms. Chafe says she went to the orphanage in December 1939 and her mother moved off the property in the spring of 1940 or 1941. [27] Ms. Chafe said her father built a house on the north end of the property and her grandfather, Richard Hunter, and uncle, William

J. Hunter, lived in a “double house” in front of theirs; so that the part of the granted land that Richard and William occupied lay between the land that her father occupied and the road. Ms. Chafe said her father and mother fenced off their portion of the land and separated it from that which her grandfather and uncle occupied. Aside from the family home that Ms. Chafe’s parents had on their land, they cultivated gardens on it in which they grew vegetables and they harvested the hay it produced. [ 31 ] The applications judge also accepted the evidence of Ms.

Chafe that she had had possession of the original document evidencing the grant (obtained from her father Hedley). She ultimately passed that document to one of Mr. Hunter’s siblings and did not get it back. [ 32 ] The trial judge found that the document evidencing the grant was significant in that the evidence of Ms.

Chafe indicated that the names of the three owners had been written on the plan attached to the grant and marked out as to the portions of the area of the original grant which each of them owned. [ 33 ] The applications judge then found that the original grantees sub-divided the land: [33] I deduce from the preceding that Richard Hunter and his two sons, Hedley and William J. Hunter, subdivided the land that the Crown granted to them as joint tenants on December 13, [1913]; thereby severing the joint tenancy and converting their co-ownership of the land to a tenancy in common.

As I have noted several times, a joint tenancy will only exist if the four unities are maintained. The Hunter grantees occupied distinct portions of the granted land by building houses and outbuildings on them, fencing them, cultivating gardens and harvesting the hay from them.

Thus, they destroyed the unity of possession, which requires that each co-owner have an undivided possession of the whole of the property. [ 34 ] The applications judge also made the following reasonable inference: [ 35 ] … Richard, Hedley and William J. were father and sons respectively; and Hedley and William J. were the only males of the six children that Richard and his wife had.

Might not Richard have simply been ensuring that their male issue would have sufficient land to their own uses and for the benefit of their families; and would it not be inconsistent with such intent and most improbable that the three of them would have accepted that the survivor of them would take the whole of the granted land to the exclusion of their spouses and heirs? [35] The applications judge also noted that in the deed that Herman Hunter provided to G and R Contracting, the land was conveyed from all three estates which he had administered.

This implied that the property was owned by three separate owners as opposed to the last to die of the original three owners. This action is inconsistent with Herman Hunter’s position that the land was held in joint tenancy. CONCLUSION [ 36 ] The applications judge’s application of the law, findings of fact, and the inferences which he drew from the facts disclose neither an error in the statement or application of the law nor a palpable and overriding error in his findings of fact.

Indeed, everything points to the correctness of his decision. [ 37 ] The applications judge did not err in finding that Richard, Hedley and William took the land as joint tenants but converted their ownership to a tenancy-in-common through their subsequent course of dealing with it. Accordingly, any interest they had in the land passed to their estates when they died intestate and as the applications judge found, ultimately to their heirs. [ 38 ] There being no basis for this Court to disturb the order of the applications judge, the appeal was dismissed with costs to the respondent. _________________________ C.

W. White J.A. I concur: _________________________ L. D. Barry J.A. I concur: _________________________ M. F. Harrington J.A.