1890. Judgment.

DUBUC, J.

or why he carried them in his pockets, are also suspicious circumstances. They may be honest for all that; but the law looks upon them with suspicion.

Bump on Fraudulent Conveyances, p. 51, says, "Anything out of the usual course of business is a sign of fraud." At p. 54 we find that "the omission of the grantee to testify or to produce the debtor or any other important witness or any important paper, is the ground for an unfavorable presumption, and frequently exercises an important influence upon the final determination of the questions of fraud." At p. 44 he says, that the antedating of an instrument is also a mark of fraud.

In his work on Frauds and Mistakes, Kerr says at p. 384, "Like much of human knowledge on all subjects, fraud may be inferred from facts that are established. Care must be taken not to draw conclusion hastily from premises that will not warrant it; but if the facts established afford a sufficient and reasonable ground for drawing the inference of fraud, the conclusion to which the proof tends must, in the absence of explanation or contradiction, be adopted."

In Douglass v. Ward, 11 Gr. 44, a suit instituted to set aside a judgment obtained by a son against his father, the Chancellor in speaking of the defendant's evidence said, "We are still of opinion that his testimony is so affected by circumstances surrounding the transaction as to render it unsafe to rely upon it."

The same is found in Ball v. Ballantyne, 11 Gr. 199, where the Vice-Chancellor said, "I cannot upon the evidence of Matilda Ballantyne, unsupported as it is and with so much against it, establish the improbable fact that there was a contract of hiring between her and her brother-in-law."

In the present case, besides the circumstances already mentioned, there are others also strongly suspicious. Why did Moore and his wife refuse to be examined on their answers. The principal issue depended upon the fairness and honesty of the alleged loans by Chevrier to Moore. If the transaction was a bona fide one, one cannot see why Moore and his wife were not willing to substantiate it under oath.

1890.

DUBUC, J.

After a first appointment was allowed to stand on account of Mrs. Moore's illness, when they were served with the Judgment. notice of a second appointment they left the country 24 hours before the day appointed for their examination. When Mr. Cameron went to see them at Spokane Falls, they refused to be examined.

Chevrier may not be responsible for their refusal to attend for examination; but I think he should have shown that he had himself taken some steps to have their evidence in his favor so as to corroborate his own testimony. As Moore had said to Prentice that he was in Chevrier's hands, and that he could not do anything except what Chevrier would be willing to do, it seems that if Chevrier had desired it, he could have prevailed upon him to substantiate his version of the transaction, and corroborate in some measure his own evidence, which is so much in need of corroboration.

As already stated, that transaction alleged to have been made in such an unusual and unlikely manner, surrounded by so many circumstances which all tend to render it suspicious, stands on the bare and uncorroborated testimony of the defendant. He should have been corroborated by John A. Moore or his wife; and he took no steps to have their evidence. He might have been corroborated in some particulars by his own bookkeeper or by McMartin, who was bookkeeper of Moore & Co. when these transactions were made, and who is said to be in Minneapolis, Minn. But nothing is done to have the evidence of these men.

There are other points in the defendant's evidence which tend to weaken his case. For instance, he states that when he made the loan to John A. Moore for Moore & Co., he did not know who was Moore & Co. He thought it was Mrs. Moore or it might be Arthur Moore, and he did not inquire. He thinks that Mrs. Moore became the owner of the business a short time after her marriage, probably about March, 1888. His last advance to Moore & Co. was in March or April, 1888, but the evidence shows that the business was not transferred to Mrs. Moore until August following.

1890.

DUBUC, J.

Notwithstanding its unusual and rather improbable featJudgment. ures, it is possible that the transaction as related by Chevrier, may have taken place. But when it is supported only by the bare testimony of the defendant, without any particle of corroboration, when some corroboration could have been obtained and should have at least been attempted to be obtained, and with all the surrounding circumstances against it, I must follow the rules laid down by the authorities as applicable to such cases. I think the plaintiffs are entitled to a decree setting aside the judgment with costs.

Decree for plaintiff, with costs.

Statement.

DYSART V. DRUMMOND.

Before TAYLOR, C.J., DUBUC and KILLAM, JJ.

Sale of land-Duty of vendor to prepare and execute conveyance at his own

expense.

In this Province, on a sale of land, unless it is otherwise provided in the agreement, it is the duty of the vendor to prepare and execute the conveyance at his own expense, and a purchaser may maintain his action for breach of the contract without tendering a conveyance to the vendor for execution.

Sweeney v. Godard, 4 Allen (N.B.) 300, followed.

ARGUED 29th November, 1890.

:

DECIDED: 19th December, 1890.

THIS was an action for breach of contract for sale of land. The declaration alleged an agreement between the plaintiff and defendants, that the plaintiff would erect a suitable warehouse of certain dimensions for the defendants, and that upon the erection of the said warehouse, the defendants would convey a certain parcel of land to the plaintiff. It

also alleged that all conditions, &c., had been performed, 1890. &c. Plea that the plaintiff did not tender to the defendants Statement. for execution, any deed or deeds for conveying the land in the declaration described, to the plaintiff. Demurrer on the ground that the plea raised an immaterial issue. The question of law thus raised came on for argument on the 19th day of July, 1890, before Bain, J., who allowed the demurrer with costs. The defendants appealed from this decision to the Full Court.

T. S. Kennedy, Q. C., for the defendants A. T. Drummond and The Montreal & Western Land Company.

C. W. Bradshaw, for the defendant C. S. Drummond.

The rule is absolute in England, that upon an agreement for the sale of land, in the absence of a stipulation to the contrary, the vendor must prepare the conveyance and tender the same for execution at his own expense. Poole v. Hill, 6 M. & W. 835; Stephens v. De Medina, 4 Q. B. 425 ; Dart on Vendors and Purchasers, p. 1086; Sugden on Vendors and Purchasers, 10th ed. p. 372. The law of England as the same stood on the 15th July, 1870, having been introduced into this Province, the above rule must be considered to be in force here and must be followed. The judgment appealed from is based on the fact that in the contract sued on, the defendants agreed to convey, the use of the word convey being considered as imposing on the vendor the duty of preparing and executing the conveyance. Several cases in the Ontario courts are referred to to support that view, but none of these are applicable excepting Parker v. Watt, 25 U. C. R. 115, and further proceedings in that case were restrained by injunction. Watt v. Parker, 2 Ch. Ch. 33. All the other Ontario cases are actions upon bonds to convey; they are not actions between vendor and purchaser, but are actions brought on contracts collateral to the agreements for sale. Besides the Ontario cases are not inconsistent with the English cases. Baker v. Bulstrode, 1 Mod. 104, where in an action on a bond to execute and seal, it was held that obligators must also prepare conveyance.

1890.

See also, Sibthorp v. Brunel, 3 Ex. 826. A contract to conArgument. vey (i.e.) to execute a conveyance when tendered, is implied in every agreement for sale of lands. Pordage v. Cole, 1 Wm. Saund. 320 a; note 4; Marsden v. Moore, 4 H. & N. 500, 504, word sell when used in respect to land includes conveyance. C. P. R. v. Burnett, 5 M. R. 395.

F. C. Wade, for plaintiff. It is admitted that the existing rule in England is, that on an open contract the purchaser must prepare and tender the conveyance.

But I. This is not the rule in Manitoba. (1) It has only lately been established in England. Mills v. Wood, 2 Cro. Eliz. 718; Candler v. Fuller, Willes 65; Pincke v. Curteis, 4 Bro. C. C. 339; Growsock v. Smith, 3 Anst. 877; Heard v. Wadham, 1 East, 619; Standley v. Hemmington, 6 Taunt. 561; Sugden on Vendors and Purchasers, 10th ed., 372. (2) It is not the rule in New Brunswick. Ansley v. Peters, 3 Kerr, 554; Sweeny v. Godard, 4 Allen, 300. (3) Nor in the United States. Sugden on Vendors and Purchasers, 14th ed. Am., p. 241. note (m) by American editor. (4) It has been doubted in Ontario. McDonald v. Murray, 11 A. R. 125. The reasons for the existence of the rule do not apply here. Sweeny v. Godard, supra; Sugden on Vendors and Purchasers, supra; Stephens v. De Medina, 4 Q. B. 425.

II. Even if the rule is in force in Manitoba, the present parties have contracted themselves out of it. An agreement to convey throws on the vendor the obligation of preparing and tendering a conveyance. Mouck v. Stuart, 4 U. C. R. 203; Prindle v. McCann, 4 U.C.R. 228; McDonald v. Snitsinger, 5 U. C. R. 312; Rogers v. Lake, 9 U.C.R.. 264; Smith v. Doan, 15 U. C. R. 634; Burns v. Boyd, 19 U. C. R. 547; Thayer v. Street, 11 U. C. C. P. 243; Scott v. Reikie, 15 U. C. C. P. 200; Parker v. Watt, 25 U. C. R. 115. It may be said that such obligation is on the vendor only, if he agree to convey on or before a certain day. But a reasonable time will be presumed, and if necessary a demand for a conveyance. The general averment covers both points. Rogers v. Lake, supra; Parker v. Watt, supra; Common Law Procedure