DeLong v. Lewis Estate, 2012 NSSC 369

SUPREME COURT OF NOVA SCOTIA Citation: DeLong v. Lewis Estate, 2012 NSSC 369 Date: 20121023 Docket: Hfx No. 371244 Registry: Halifax Between: John Hamilton DeLong Applicant and The Estate of Helen Lewis Respondent and Ronald V. Penny Intervenor DECISION Judge: The Honourable Justice Gerald R. P. Moir Heard: April 3, 2012 Counsel: John Washington and Erin Cain, for applicant Brian Church, Q.C., for respondent W. Augustus Richardson, Q.C., for intervenor Moir J. :

[ 1 ] In 1973, the applicant ’ s uncle, also John H. DeLong, acquired two acres of land at Port Grenville in Cumberland County. The senior Mr. DeLong conveyed the property in 1984 to himself and Helen Lewis as joint tenants. [ 2 ] Unknown to either of the DeLongs, Ms. Lewis executed and registered a quit claim deed early in 2010. This deed purported to convey the Port Grenville land from Ms. Lewis to Ms. Lewis. It says it was executed "for the purpose of severing the joint tenancy between the current owners". A deed transfer tax affidavit to similar effect was sworn by Ms.

DeLong and given to the municipality. [ 3 ] Ms. Lewis died eighteen months later. Before her death, Mr. DeLong was unaware of the deed or Ms. Lewis' intent to sever the joint tenancy. [ 4 ] The younger Mr. DeLong holds his uncle's power of attorney. In that capacity, he applies for an order declaring the quit claim deed to be invalid and declaring the senior Mr. DeLong to be the sole owner of the Port Grenville land. [ 5 ] The lawyer who prepared the quit claim deed obtained an order adding him as an intervenor. He defends the effectiveness of the deed, and the administrator of Ms.

Lewis' estate supports him. [ 6 ] For Mr. DeLong, Ms. Cain asserts a straightforward argument founded on familiar authority. A joint tenancy is severed when a joint tenant exclusively conveys her interest to another. A conveyance by one's self to one's self alone is a "nullity". Therefore, Ms. Lewis' quit claim deed did not sever the joint tenancy she had with Mr. DeLong. [ 7 ] For Ms. Lewis' lawyer, Mr. Richardson takes a distinction between the law of conveyancing and the equity of (or common law of) estoppel. He says, "Such a deed is a nullity." However, it is effective in equity.

The execution and publication, through registration, of the deed estopped Ms. Lewis from ever asserting a right to Mr. DeLong's half interest on his death. The right of survivorship is at the essence of a joint tenancy. Although the conveyance was a nullity in law, it gave rise to an estoppel that effectively alienated Ms. Lewis' interest. [ 8 ] Ms. Cain referred me to Justice Tidman's decision in Roby Estate v. Buley , [1989] N.S.J. 482 and Justice Tidman's reference to the long standing authority of Williams v. Hensman . Ms.

Cain accurately summarized the three ways in which the unity of title essential to a joint tenancy may be destroyed and the joint tenancy consequently converted to a tenancy in common: 1. A severance may occur as a result of a party's act upon his or her own share. 2. A severance may occur by mutual agreement. 3. A severance may occur if the joint tenants mutually treat the joint tenancy as severed. Ms. Lewis' quit claim deed could only have severed the joint tenancy under the first of these because there was no knowledge on Mr.

DeLong's part, let alone mutuality. [ 9 ] "At common law a conveyance to one's self is a legal impossibility": Presseau v. Presseau Estate , 2010 NSSC 201 at para. 30 . Justice Dellapinna went on to point out that legislation has made such a conveyance possible in some provinces, such as Ontario, but our statutes contain no such provision. He found that the deed in question in Presseau "is a nullity": para. 33 .

[10] As Ms. Cain points out, there is nothing in our Conveyancing Act permitting a deed to one's self and s. 10 of the Real PropertyAct only authorizes a deed to one's self "jointly with another person". Mr. Richardson distinguishes Presseau on the basis that his clientseeks a finding that "Mrs. Lewis was signalling a clear and irrevocable intention to sever the joint tenancy" and Justice Dellapinnaexpressly limited his decision "to the legitimacy of the deed". He did not consider its equitable effects. [11] The argument for severance by operation of estoppel begins with Wilks Child v. Bulmer, [1891] 3 Ch. 59.

Non-mutualseverance is achieved "by a disposition made by one of the joint owners amounting at law or in equity to an assignment of the share ofthat owner" (p. 61-62). The action taken by the tenant "... must be such as to preclude him from claiming by survivorship any interest inthe subject-matter of the joint tenancy": p. 62. (In that case, three children were joint tenants of a fund. The eldest, Wilks Child, turnedtwenty-one and he started proceedings for an order for payment of one-third to him. Had the order been granted, the joint tenancy wouldhave been severed. Mr. Child died before his case was heard.

Starting the proceeding and, thereby, making his intentions clear, did notpreclude Mr. Child from reverting to the joint tenancy and claiming as a survivor should either of the other children die before an orderwas made.) [12] So, Wilks Child suggests that a non-mutual severance occurs when a joint tenant does something that precludes him fromclaiming as a survivor. [13] From that point, the argument goes to Re Murdoch and Barry (1975), (ON SC), 10 O.R. (2d) 626 (H.C.). Justice Goodman held that a deed to one's self was effective under an Ontario statute, and such would sever a joint tenancy.

He referredto Wilks Child and said that, even if Ontario had not legislated for the conveyance, the deed in that case, an affidavit sworn by the tenantat the time, and the registration of the deed "have effectively estopped her from claiming by survivorship any interest in thesubject-matter of the joint tenancy in the event she had survived [the other tenant]": para. 26. Justice Goodman did not explain why thatwould be so. [14] Mr. Richardson also referred to Stonehouse v. British Columbia (Attorney-General), (SCC), [1962] S.C.R.103; Re Mee, (BC CA), [1971] B.C.J. 694 (C.A.); and Freed v.

Taffel, [1984] 2 N.S.W.L.R. 322 (E.C.). Thesesupport the proposition that a disposition by a joint tenant acting alone severs the joint tenancy if that tenant has effectively precludedhimself from claiming as a survivor. However, none of these three cases are like Re Murdoch and Barry in one respect. None suggestthat the making of a deed to one's self, supporting its intent for severance with an affidavit, and registering it, gives rise to an estoppel. [15] There are two fundamental problems with the assertion that Ms. Lewis' invalid deed, and its registration, found an estoppelagainst Ms.

Lewis that she can use to make the invalid deed achieve its purpose. Firstly, no interested party heard her. Secondly, had aninterested party heard her it would be up to that person to decide whether or not to hold her to her word. [16] Estoppel is not exclusively an equitable concept: Bruce MacDougall, Estoppel (Markham, LexisNexis, 2012) at para. 1.26 to1.33. Whether used in law or equity, each of the kinds of estoppel involve a communication between parties.

As Professor MacDougallputs it, at para. 1.42, "The essence of any estoppel is that there has been a statement of some sort that the recipient wants to have themaker held to." [17] A statement made alone in the wilderness cannot found an estoppel. It must be heard.

Heard in the sense of hearing an oralstatement, reading a written one, or observing conduct that amounts to a communication. [18] And so, estoppel by deed and estoppel by convention require parties who make an agreement. (And, the later requiresdetrimental reliance.) Estoppel by representation, promissory estoppel, and proprietary estoppel all require a speaker and a recipient. Also, each of these kinds of estoppel require detrimental reliance on the part of the recipient. Election, which is a related branch of law,involves the communication of a choice.

Abandonment is still difficult to characterize, but it appears to involve communication and ithas no application on the present facts. [19] Therefore, I do not agree with the conclusion expressed in obiter in Re Murdoch and Barry. There was no estoppel because nointerested party heard anything.

[ 20 ] Ms. Lewis registered an ineffective deed. Putting it in the Registry made it so Ms. Lewis could not later deny her intention as at the time she registered the deed. But, putting the invalid deed in the Registry, where no interested party went, is not a communication. So, there was no estoppel. [ 21 ] Further, we sometimes say that estoppel is a shield, not a sword. If there had been a communication it would be for Mr. DeLong to enforce it. Ms. Lewis, through her representatives, seeks to enforce something she said, not something said to her.

An estoppel involves a statement "that the recipient wants to have the maker held to". Had a communication been made, Mr. DeLong was free to choose not to give it credit. The disposition of Ms. Lewis' right of survivorship was far more hypothetical than Re Murdoch and Barry suggests. [ 22 ] The ineffective deed gave rise to no estoppel. On its own, it was not effective to preclude Ms. Lewis from claiming as a survivor. [ 23 ] Therefore, I will allow Mr. DeLong's application and grant an order declaring that Ms. Lewis' deed was ineffective to transfer title or to sever the joint tenancy and that Mr.

DeLong is the sole owner of the Port Grenville property. Counsel may make submissions on costs in writing. J.