1889 BROWN บ. view which ought to be taken of the evidence on this last point. If there really was no complete and finally concluded sale until the 20th August, it is difficult to see on what ground the mortgage can be held to be void. It would, in that case, I think, be within one LAMONTAGNE of the saving clauses of section 3, a conveyance made in consideration of the present actual bonâ fide sale of goods to secure the purchase money of such sale. I take that to be the transaction-perhaps only one of the transactions-protected by the last exception in that section. And having regard to the comparatively trifling value of the goods included in addition to those sold by the plaintiff and re-conveyed to him by the mortgage and to the depreciation which would necessarily take place in the value of the latter during the term of the mortgage, I think it might be fairly held that the whole bore no more than a fair and reasonable relative value to the consideration. We are, however, obliged to resort to the agreement on the 10th June in order to ascertain the inception of the transaction, and, on the whole, I think the proper inference from the evidence is, that on the delivery of possession the day after that agreement was made, the goods became the property of Paquette and he became indebted to the plaintiff for the price. By the contract he agreed to keep the machinery insured, the loss, if any, payable to the plaintiff. In what character he insured, if he insured at all, we do not know, but no interest other than that of owner or purchaser is so far as disclosed by the evidence conferred upon him. The same implication arises from the clause by which he agrees to give a chattel mortgage as security for the price, an implication which is not rebutted by the fact that the same clause speaks of a "hire receipt" as an alternative form of security, the argument being that a security of that kind could not be given unless the goods remained the property of the vendor. A mortgage is a security entirely consistent with the written agreement. The hire receipt involves the making of a subsequent agreement entirely inconsistent with it. If the property did not pass to Paquette upon delivery of possession under the contract of sale, when did it pass? No novus actus was proved. The mortgage recites that Paquette had purchased the goods from the mortgagee, and that it was part of the "purchase," that he should give a chattel mortgage to secure payment of the purchase money. This plainly refers to the memorandum of the 10th June, not to some later agreement by which what had been, up to the date of the mortgage as the plaintiff would now urge, a mere bailment, was converted into a purchase of the goods. I think we should hold that the mortgage recites and represents the real transaction of the 10th June. I find it difficult to understand how, under the circumstances, a valid "hire receipt" as that term is usually understood, could have been given. In all probability it was used merely as the name of a 4-SUP. CT. CAS. 1889 BROWN v. familiar form without much regard to its suitability to the case of an actual sale. The goods then remained in the purchaser's possession until the LAMONTAGNE 20th August, when, after having postponed it from time to time on the ground that it would hurt his credit, he executed the chattel mortgage in question. For the purpose of this case it is unnecessary to consider, whether, as was argued, any change has been made by the recent Act in the well settled rule that where a sale or advance is made on the faith of a promise, that security shall be subsequently given, the sale or advance is to be treated as a present sale or advance upon the security, in other words, that the security relates back to the time when the sale or advance was actually made. Here, the mortgage, contrary, as I think, to the intention of the memorandum of the 10th June, includes other property than that which had been sold to Paquette, and also professes to grant or give security upon the after acquired property of the mortgagor, which may be in his possession on the premises during the term of the mortgage. Such a security cannot be held to have been given in pursuance of the agreement. It was one to which the plaintiff was not entitled, and of which he could not have enforced the execution under that agreement, and so must be regarded as the result of a new bargain for better terms. For this reason it cannot relate back to the original agreement, and stands, therefore, or falls according to the situation of the parties at the time. Having been given to secure a past transaction, and at a time when the mortgagor was in insolvent circumstances, it has the effect of preferring the plaintiff, in respect of the debt created on the 10th June, to his other creditors and must fall. The plaintiff has his own folly or worse to thank for the result. His omissions to take his security at the time or to insist upon it promptly and effectually afterwards is hardly to be explained,, except on the ground that he was willing to allow Paquette to trade on the credit of the property, taking his chances of being able to protect himself from loss under his agreement. I think the appeal should be dismissed. O'Gara and Hick, for the appellant, contended that the proof was conclusive that the possession given to Paquette on the day the agreement was signed was conditional, and that the title did not pass to him until the 20th August, when the mortgage was given; that the giving of a security stipulated for at the commencement of the transaction was valid, citing In re Goldsmid (f); Furlong v. Reid (g); Burns (f) 18 Q.B.D. 295. (g) 12 Ont. P.R. 201. v. McKay (h); McRoberts v. Steinhoff (i); Building and Loan Association v. Palmer (j); Long v. Hancock (k); Ex parte Wilkinson, In re Berry (l). Belcourt, for the respondent, contended that the mortgage was void, as the mortgagor was at the time it was made in insolvent circumstances to the knowledge of the mortgagee, both under 13 Eliz. ch. 5, and R.S.O. ch. 124, ss. 2 and 3; and cited McRoberts v. Steinhoff (i); River Stave Co. v. Sill(n); Ex parte Fisher, In re Ash (0); Commercial Bank v. Wilson (p); Warnock v. Kloepfer (q); Clarkson v. Sterling (r); Dominion Bank v. Cowan (s); Cameron v. Perrin (t); MacDonald v. McCall (u); Ex parte Burton (v); Ex parte Kilner(w). SIR WILLIAM J. RITCHIE C.J., was of opinion that the appeal should be dismissed with costs. FOURNIER J., concurred. TASCHEREAU J.-I would dismiss this appeal with costs for the reasons given by Armour J., and Hagarty C.J., in the courts below. GWYNNE J.-The question in this case is wholly one of fact, and I am of opinion that the Chief Justice of the Queen's Bench Divisional Court of Ontario has taken the correct view of the case-that the whole transaction was a 1889 BROWN v. LAMONTAGNE (h) 10 O.R. 167. (i) 11 O.R. 369. (j) 12 O.R. 1. (k) 12 Can. S.C.R. 532. (n) 12 O.R. 557. (0) 7 Ch. App. 636, at p. 638. (g) 14 O.R. 288; 15 Ont. (r) 14 O.R. 460. (s) 14 O.R. 465. (t) 14 Ont. App. R. 565. 1889 sham and a fraud. The appeal must, therefore, be dis BROWN v. LAMONTAGNE missed. Appeal dismissed with costs. Gwynne J. Solicitor for the appellant: Robert Hicks. Solicitors for the respondent: McDougall, McDougall & Belcourt. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Title to land Dedication-Public highway-Expropriation-Pre sumption-User. K, brought an action against D. and R. for trespass to her land in Held, reversing the judgment of the Supreme Court of Nova Scotia APPEAL from the judgment of the Supreme Court of The plaintiff, by her statement of claim, prayed an injunction commanding the defendants to remove certain water pipes laid down by them through land claimed by her and damages. The defence set up was that the acts *PRESENT:-Sir W. J. Ritchie C.J., and Strong, Fournier, Henry, Taschereau and Gwynne JJ. (a) 20 N.S. Rep. 95. 1887 *Oct. 26, 27. 1888 *June 14. |