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1905

made by Alloway was for leave to file a new caveat. The whole argument was as to the power to make such an Argument. order. Section 127 of the Act was not dealt with before Mr. Justice Richards. The appellant may have power under that section to file a caveat without leave of a Judge. He may have the right under section 127, but the Court has no power to give him leave. A strict construction of the statute should be followed. Statutes conferring jurisdiction are to be construed strictly. The power of the Court should be abridged. The powers of the District Registrar should not be abridged: Maxwell, 412. As to the construction of the statute: McArthur v. Glass, 6 M.R. 224; Grant v. Hunter, 6 M.R. 610; McKay v. Nanton, 7 M.R. 250; Graham v. Hamilton, 8 M.R. 443; Martin v. Morden, 9 M.R. 565. The Court has no power in matters under the Real Property Act, except those conferred on it. The judgment of the Court was delivered by

PERDUE, J.-The motion for leave to file a second caveat was made by reason of the decision in Frost v. Driver, 10 M.R. 209. In that case it was held by Bain, J., that a party claiming an interest in land can file only one caveat on the application to bring the land under the operation of the Act; that when a caveat has been filed the authority given by section 127 has been exercised, and no further caveat can be filed under it. The plaintiff asked for a judge's order under section 140, giving him leave to file the second caveat.

The case of Frost v. Driver was, no doubt, well decided upon the facts involved in that case. The caveators in that case appear to have filed two successive caveats upon exactly the same interest and without obtaining a judge's order permitting them so to do. This is something the statute says they must not do. But, if Frost v. Driver is ought to be invoked to prevent a party from filing a caveat as to an estate or interest acquired after the filing

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Judgment.

PERDUE, J.

of the first caveat and not possessed by him when he filed his first caveat, I must dissent from the view that it extends to such a case. A brief examination of the earlier Real Property Act in connection with the present one, and with the Australian Acts from which ours was derived, will make this point clear.

The Real Property Act of 1885 opens with a recital which expresses the object of the Legislature in passing it and gives us a key to its interpretation, and to the proper construction of the various amendments and revisions which have resulted in the present Act. This recital is as follows:-"Whereas, it is expedient to give certainty to the title to estates in land in the Province of Manitoba, and to facilitate the proof thereof and also to render dealings with land more simple and less expensive; therefore," &c. The most benevolent construction is to be adopted in construing the provisions of such an Act, as regards the effect they may have on the rights of persons owning or claiming land. There was plainly no intention to confiscate the right of any person claiming an interest in land without affording him an ample opportunity of enforcing his right.

Section 107 of the Act of 1885 provides that “any person claiming to be interested under any will, settlement or trust deed, or any instrument of transfer or transmission, or under any unregistered instrument or otherwise howsoever, in any land may lodge a caveat" to the effect that no disposition of the land be made until notice shall be served on the caveator or unless the disposition is subject to the claim of the caveator. The form of caveat given in the schedule showed that the nature of the estate or interest claimed was to be set out in the caveat. By an amendment to the section passed in the following year, it was declared that a caveat should be deemed to have lapsed unless proceedings were taken upon it within a month and that no caveat, after having lapsed, should be

renewed without leave of the Court.

Sub-section 10 of 1905

section 107 provided that it should not be lawful for Judgment. the same person or for any one on his behalf "to lodge PERDUE,J. a further caveat, in relation to the same matter." The corresponding provision in the Australian Act fom which the above Act is adapted is as follows:-"A caveat shall not be renewed by or on behalf of the same person in respect of the same estate or interest"; Duffy & Eagleson, pp.

142-143.

It is clear that the Act of 1885, although forbidding the filing of a second caveat in relation to the same matter, permitted the filing of a further caveat to cover an after acquired interest. It is impossible to construe section 107 in any other way. If, for instance, a party possessed of an interest under a will filed his caveat to protect that interest, and during the pendency of the proceedings upon it he acquired a further interest under a trust deed or in any other way, it is surely the intention of the section to permit him to put in a further caveat to cover his additional interest. When the Interpretation Act declares that a word importing the singular number includes more than one thing of the same kind, it is impossible to construe "a caveat" as meaning "only one 'caveat" in section 107 of the first Act, or in the corresponding section 127 of the present Act; see Interpretation Act, R.S.M. 1902, c. 89, s. 8, s-s. (m).

The prohibition contained in sub-section 10 of section 107 of the Act of 1885 and continued in the subsequent Acts, in the words:-"It shall not be lawful for the same person.. to lodge a further caveat in relation to the same matter" must be taken to refer to the same subject matter, that is to say, the same question between the parties. The words employed in our Act are as wide or wider than "the same estate or interest" which is the expression used in the Australian Act.

Sections 127 and 140 of the present Act, R.S.M. 1902,

PERDUE, J.

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1905 c. 148, contain the main provisions corresponding to the Judgment. parts of the Act of 1885 above cited. Section 127 provides that "any person claiming an estate or interest in land described in an application to bring the same under the new system may file a caveat . forbidding the bringing of such land under the new sysItem." By section 133, every caveat must state the nature of the title, estate, interest or lien under which the claim is made. Section 140 provides that "after a caveat shall have lapsed or been withdrawn or discharged, it shall not be lawful, except as herein mentioned, for the same person or for anyone on his behalf to lodge a further caveat or file a certificate of lis pendens in respect of any proceeding in Court in relation to the same matter." Wo need only look at the original provision, R. P. Act, 1885, s. 107, s-s. 10, above referred to, in order to see that the expression "in relation to the same matter" in the above cited section 140 applies to the word "caveat" as well as to the word "proceeding." The meaning of the section plainly is that a second caveat shall not be filed while the first caveat stands, unless the second one relates to a different matter, that is to say, sets up a different mode of claiming title, or raises a different question between the parties.

The interest a person takes under a tax sale deed has long been recognized under the Act as a special mode of claiming title and special provisions have from time to time been made relating to tax titles; see Real Property Act, 1885, sections 29 and 30 as amended by 49 Vic., c. 28, ss. 7 & 8; also Revised Statutes of Manitoba, 1892, c. 133, s. 49 and 59 Vic., c. 24, &c. The title or interest, therefore, which the plaintiff acquired under the deed from the patentee of the lands in question is of quite a different nature from that taken under the tax deed, the latter depending for its validity upon the regularity of the tax sale and of the matters leading up to

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PERDUE, J.

the same. To deprive him of the right to file a caveat in respect of the subsequently acquired title would par- Judgment. take of the nature of confiscation. This, I am satisfied, was never the intention of the Real Property Act, the object of which was, not to deprive a man of any right or interest he had in land, but to show the title in a simple form and to facilitate dealings with the land. But, it was argued, the plaintiff in this case should have abandoned. his first caveat and have applied under section 140 for a judge's order that a new caveat be filed, in which he might set up both methods of making title. I do not 'think that it was ever the intention of the Act that a man should abandon a valid proceeding upon one claim in order that he might take his chance of being allowed to add another and subsequently acquired claim.

The plaintiff was, in my view, entitled to file a caveat in respect of the title or interest he acquired under the deed from the patentee, without first obtaining a judge's order giving him permission and without abandoning his first caveat.

In the view that has generally been taken of the effect of the decision in Frost v. Driver and of the dictum of the learned judge in that case,-that after a first caveat no further caveat can be filed under the authority of the section, the plaintiff was justified in applying for a judge's order. If that dictum applied to the present case the plaintiff must either obtain a judge's order permitting him to file the second caveat, or he must abandon any rights acquired under the deed from the patentee. As above pointed out, the decision in Frost v. Driver is not to be extended to a case like the present.

The plaintiff, therefore, although misled into applying for the order by reason of the generally received interpretation of the above case, is entitled without an order to file a caveat setting up his interest under the second. deed. The other portion of the application, postponing

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