Statement. Conveyances, with the usual statutory covenants, among others, the covenants for quiet enjoyment and against encumbrances, which in the long form are as follows:

"And that it shall be lawful for the said covenantee, his heirs, executors, administrators and assigns, from time to time and at all times hereafter, peaceably and quietly to enter upon, have, hold, occupy, possess and enjoy the said land and premises hereby conveyed, or intended so to be, with their and every of their appurtenances; and to have, receive and take the rents, issues and profits thereof, and of every part thereof, to and for his and their use and benefit, without any let, suit, trouble, denial, eviction, interruption, claim or demand whatsoever of, from or by him the said covenantor, or his heirs, or any person claiming, or to claim, by, from, under or in trust for him, them or any of them.

And that free and clear, and freely and absolutely acquitted, exonerated and for ever discharged, or otherwise by the said covenantor or his heirs well and sufficiently saved, kept harmless and indemnified of, from and against any and every former and other gift, grant, bargain, sale, jointure, dower, use, trust, entail, will, statute, recognizance, judgment, execution, extent, rent, annuity, forfeiture, re-entry, and any and every other estate, title, charge, trouble and encumbrance whatsoever, made, executed, occasioned or suffered by the said covenantor or his heirs, or by any person claiming or to claim, by, from, under or in trust for him, them or any of them.

And the said covenantor, for himself, his heirs, executors and administrators, doth hereby covenant, promise and agree, with and to the said covenantee, his heirs, executors, administrators and assigns, that he hath not at any time heretofore made, done, committed, executed, or wilfully or knowingly suffered any act, deed, matter or thing whatsoever, whereby or by means whereof the said lands and premises hereby conveyed, or intended so to be, or any part or parcel thereof are, is, or shall or may be in anywise impeached, charged, affected or encumbered in title, estate or otherwise howsoever."

At the date of this deed the street had already been Statement. constructed.

Subsequently the plaintiffs were compelled to pay one of the yearly assessments and brought this action against the defendant under the covenants in the deed.

The action was tried before ROBERTSON, J., who gave judgment in favour of the plaintiffs and this judgment was affirmed by the Divisional Court of the Chancery Division.

The defendant appealed and the appeal came on to be heard before this Court (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ.A.) on the 7th of March, 1890.

J. Haverson, for the appellant. The assessment in question has not been imposed upon the land by means of any act of the defendant, so that there has been no breach of his covenants. Under the Municipal Act there are two ways of having local improvements effected. The city may initiate proceedings for an improvement and unless a certain number of ratepayers affected petition against the proposed improvement, the city may carry it out. On the other hand, a certain proportion of the ratepayers affected may petition the city to carry out an improvement and the city may then pass upon the petition and decide to carry the work out. This is what was done in the present case, but in each case the decision rests with the city, and it is not bound to go on merely because a petition is presented by a sufficient number of ratepayers. Merely signing a petition has no effect. It is clear that if the city had initiated proceedings the defendant would not be liable nor would he be liable if he had refused to sign a petition to the city by his co-owners. Admitting this, how is it possible to say that by merely signing a petition upon which the city came to a decision and decided to take certain proceedings he has made himself liable? There is no more liability than if the defendant had by agitating the matter got the city to take it up and

37-VOL. XVII. A.R.

Argument.

initiate proceedings. Moore v. Hynes, 22 U. C. R. 107, is really a case in favour of the defendant. In that case the plaintiff was claiming payment of arrears and also of a sum sufficient to commute the future payments, but it was held that even assuming that the rates were charged on the land still they were charged only so far as they had fallen into arrear, and there was no charge so far as the future payments were concerned. It must be remembered also that in that case the covenants were unlimited, while here they are limited. This is nothing but a tax, the arrears of which only form an encumbrance: St. Sulpice v. Montreal, 16 S. C. R. 399. The plaintiffs had notice of the charge and were aware of the usage of the city, and knew that these rates would be paid year by year, and cannot now complain. The lands in question being specifically charged with a rate for these local improvements are relieved from a proportion of the general taxes, and if the plaintiffs succeed in this action they really get the land free from taxes for several years to come.

J. H. Ferguson for the respondents. In Moore v. Hynes, 22 U. C. R. 107, the covenant related to arrears only. It was not therefore necessary for a decision of that case to consider whether future payments would be a charge or not. The work in question has been done at the request of the defendant and the other property owners, and without that request the council had no power to take the proceedings, so that each person signing the petition did an act enabling this charge to be imposed. The assessments became a charge on the land as soon as the by-law was passed and that was before the deed: R. S. O. (1887) ch. 184, sec. 623. The transaction is simply equivalent to the property owners borrowing from the city sufficient money to enable the proposed improvement to be made, and the city taking back from them a mortgage on their properties to secure repayment of the loan. Mere concurrence in an act of others is a breach of the covenants: Hobson v. Middleton, 6 B. & C. 303; Anderson v. Oppenheimer, 5 Q. B. D. 602; Butler v. Swinnerton, Cro. Jac.

656; Dart, Vendors and Purchasers, p. 884. The plaintiffs Argument. had no notice that the assessment was unpaid. They do not object to the rate for the block pavement or sewer, but they were entitled to assume when buying the land that the road-bed was paid for. J. Haverson, in reply.

May 13th, 1890. OSLER, J. A :—

The question is whether a tax or assessment imposed by the city council for a work done as a local improvement on the petition of the defendant and others is an encumbrance upon the land within the meaning of the defendant's covenants for quiet enjoyment, free from encumbrances, and that he has done no act to encumber, in his conveyance of part of such lands to the plaintiffs. The case is in some respects novel, but when the facts are properly understood I think the principle is plain.

The defendant and others being owners of a block of land in the northern part of the city between Bloor street and Dundas street, and being desirous to improve it otherwise than at their own expense, for the purpose of selling it to the best advantage, determined to run a street through it 66 feet in width, to be called Margueretta street, on each side of which lots of a convenient size could be laid out. Naturally it was undesirable that the width of the street should be lost by the wasteful process of dedication, and turning to the Municipal Act the owners discovered a method there provided by which, if they could only induce the council to adopt it, the city would not only advance to them the value of the land required for the street, but would also assume the duty, and pay in the first instance the cost, of laying out and constructing it, taking back in effect a mortgage for the whole outlay in the shape of a charge to be created by the special assessment—a charge which would not be felt by the owners in consequence of the increased value given to the rest of the property by means of the improvement, and which would be borne by

Judgment. the purchasers of the lots unless protected by the covenants of the vendors.

OSLER
J.A.

[The learned judge stated the facts in detail, as above set out, and continued:]

Upon this state of facts it appears to me clear that the defendant's covenants are broken.

That the assessment was a charge upon the land needs no argument. The statute makes it so.

The proceedings were taken under section 612 of the Municipal Act, relating to local improvements.

Under the provisions of that section, local improvements, including the opening of a new street, may be either originated by the council and carried out by them at their own instance subject to the control which the ratepayers may exercise under sub-section 4 (a), or may be undertaken at the instance of the property owners who may set them in motion by presenting a petition, as in the present case, for the work or improvement they desire, signed by at least two-thirds in number, representing one-half in value, of the owners of the property to be benefited. What the council may do upon receipt of such a petition is "to make the necessary assessment, pass the necessary by-laws and take all proper and necessary proceedings for the execution of such work, improvement or service, with as little delay as possible."

This was accordingly done by the council upon the defendant's petition, but it is nevertheless strongly contended that it was not the act of the defendant within the meaning of his covenant, but was the independent legislative act of the council just as much as if they had themselves initiated the proceeding, because they had a discretion and were not bound to accede to the petition or to act upon it at all. In one sense, no doubt, it was the act of the council, but the question is whether that act was not brought about and occasioned by and at the instance of the defendant and his associates. To that question the evidence admits, in my opinion, of but one answer. The word acts means something done by the