D. C. 1911

v.

Britton, J.

possession to the plaintiffs, but would have ordered that, in case of a sale of this land at the instance of, or for the benefit of, the BELANGER infant plaintiffs, the defendant Bélanger should be entitled to a BELANGER. lien on the land and proceeds of sale thereof for any amount he has paid, since the death of Arthur Bélanger junior, upon the mortgage of the said land, and also for the amount received by the defendant Mrs. Hay, expended, as she says, for the maintenance of herself and the infants by virtue of the certificate of insurance assigned to her by the defendant Bélanger. The defendant Bélanger would be entitled to interest on these amounts, and he would be obliged to account for rents and profits.

The plaintiffs were willing to consent to a lien for the amount paid on the mortgage since the death of Arthur Bélanger junior. If called upon to find the fact as to the age of the administratrix, upon such evidence as was given, it would be that she was only nineteen years and seven months old when administration was granted to her. The only evidence was that of herself, corroborated by that of her brother-in-law, J. B. Mobilier. Mrs. Hay stated that she was married to the deceased on the 10th February, 1902, and that she was then fifteen years and eleven months old. Her husband died on the 14th July, 1905. The grant of administration was made on the 11th October, 1905. The trial of this action was held on the 14th November, 1910, about five years and one month after the grant, so that her age at the time of the trial was twenty-four years and eight months. Mobilier, her brother-in-law, who had known her for many years, gave her age then as about twenty-five. No certificate of the birth or baptism of Mrs. Hay was put in, and the defendants' counsel objected to the sufficiency of proof of age.

In dismissing the action brought by the infant plantiffs, it should be without costs.

The plaintiffs appealed from the judgment of BRITTON, J.

March 17. The appeal was heard by a Divisional Court composed of BOYD, C., LATCHFORD and MIDDLETON, JJ.

C. G. O'Brian, K.C., for the plaintiffs. As the widow, at the time of the grant of the letters of administration to her, was an infant, the grant is void: Merchants Bank v. Monteith, 10 P.R. 334; Cumming v. Landed Banking and Loan Co. (1890), 20 O.R.

382, at p. 395; Williams on Executors, 10th ed., pp. 159, 359, 386. The sale to the defendant was invalid, as it was made without the consent of the Official Guardian: Devolution of Estates Act, R.S.O. 1897, ch. 127, sec. 8; and 10 Edw. VII. ch. 56, sec. 19 (O.) This was not exactly a sale, but was a compromise, and the Court has no jurisdiction to enforce a compromise of the rights of infants: In re Birchall (1880), 16 Ch. D. 41. On the question as to whether, in case the Court should order a sale of the land for the benefit of the infant plaintiffs, the defendant should be entitled to any lien, see Stikeman v. Dawson (1847), 1 DeG. & S. 90; Martin v. Gale (1876), 4 Ch. D. 428; Pollock on Contracts, Blackstone ed., p. 77.

H. S. White, for the defendants. The letters of administration granted by the Surrogate Court cannot be treated as a nullity. The High Court has no power to revoke a grant, by a Surrogate Court, of letters of administration: Mutrie v. Alexander (1911), 23 O.L.R. 396. There is nothing in the Surrogate Courts Act, 10 Edw. VII. ch. 31, prohibiting the granting of letters of administration to an infant: see sec. 54. As to the objection that the sale to the defendant Bélanger was made without the consent of the Official Guardian, that has been disposed of by the order of the trial Judge confirming it, from which order there is no appeal.

O'Brian, in reply. Section 50 of the Surrogate Courts Act of 1910 prohibits the granting of letters to an infant.

June 19. MIDDLETON, J.:-Two question were argued upon the appeal: (1) the effect of the infancy of the administratrix; (2) whether the Court should now set aside the sale, in view of the order made by Mr. Justice Britton.

Upon the first point, I agree with the trial Judge that the letters of administration granted by the Surrogate Court cannot be treated as a nullity. It is the adjudication of the Court having jurisdiction in the premises, and is binding upon the High Court. This is the law, quite apart from the statutory provision relied on by the learned trial Judge: Noell v. Wells (1669), 1 Lev. 235: and, even if the letters of administration should now be revoked, this would not affect the validity of all acts done during their currency: Allen v. Dundas (1789), 3 T.R. 125: Boxall v. Boxall (1884), 27 Ch. D. 220.

29-XXIV. O.L.B.

D. C.

1911

For reasons discussed at length in Mutrie v. Alexander, 23 O.L.R. 396, it is quite clear that, apart from special statutory BELANGER provisions, the High Court has no power to interfere with the BELANGER. Surrogate Court in the exercise of its particular jurisdiction, and no statutory provision enables this Court to revoke the letters of administration granted by the Surrogate Court.

υ.

Middleton, J.

The circumstances surrounding the sale indicate that there was no fraud or overreaching; and this action is an attempt to obtain from a bonâ fide purchaser the advantage of an increase in value, quite unforeseen at the time of the sale.

If the plaintiffs are not bound by the sale, then they are entitled to obtain this benefit, the Court having no concern with the moral aspect of the case.

The consent of the Official Guardian ought to have been obtained at the time of the sale; and the statute, then and now, invalidates a sale in the absence of his consent "without an order of a Judge of the High Court." The trial Judge, approving of the sale on the evidence before him, made an order under this statute confirming it, and thereupon dismissed the action.

This order has, I think improperly, been embodied in the formal judgment, but it is really an order made by the learned Judge in the exercise of a special statutory jurisdiction, and as to which there is no appeal.

Even if open to review upon the evidence, and in the circumstances disclosed, I do not think we should interfere.

The appeal should be dismissed with costs.

LATCHFORD, J.:-I agree.

BOYD, C.-There is no evidence of values sufficient to shew that any improper advantage was taken 'of the infants; and altogether the delay and the circumstances are such as not to warrant the disturbance of what has been done, even though it be in some respects irregular.

I would agree with the judgment on other points of my brother Middleton.

Appeal dismissed with costs.

[IN THE COURT OF APPEAL.]

EUCLID AVENUE TRUSTS Co. v. HOнS.

Husband and Wife-Mortgage by Wife to Secure Advance to Husband— Absence of Independent Advice-Undue Influence-Onus-EvidenceValidity of Mortgage-Foreign Banking Corporation-Authority to Hold Land in Ontario-Statutes of Mortmain-License to Do Business in Ontario-Extra-Provincial Corporations Licensing Act-Loan Corporations Act-Possession-Redemption—Account.

Held, affirming the judgment of a Divisional Court, 23 O.L.R. 377, that all the defences to the action failed, and the plaintiffs were entitled to possession of the mortgaged lands, subject to an accounting if the defendants desired to redeem.

AN appeal by the defendants from the judgment of a Divisional Court, 23 O.L.R. 377.

May 10. The appeal was heard by Moss, C.J.O., GARROW' MACLAREN, MEREDITH, and MAGEE, JJ.A.

R. S. Robertson, for the defendants. The plaintiffs' mortgage was undoubtedly made by the defendant Agnes E. Hohs, a married woman, without independent advice, and there is evidence of undue influence. If her statements are true-and the trial Judge found that they were there was undue influence by the defendant Edgar J. Hohs, her husband. She was told that the mortgage was a mere formality; that the husband's security for the sum borrowed by him was sufficient, but that the plaintiffs' custom was to get security on land. She received no value for the mortgage; the shares acquired were her husband's. She at first refused to make the mortgage, and afterwards consented. She changed her mind because she was convinced that her own property was not in jeopardy; after the explanation, she believed the obligation to be purely personal. If her story is true, there is sufficient to void the transaction: Carlisle and Cumberland Banking Co. V. Bragg, [1911] 1 K.B. 489; Chaplin & Co. V. Brammall, [1908] 1 K.B. 233; Turnbull & Co. v. Duval, [1902] A.C. 429. If something was said to her which set her mind at rest, and made her act as she would not have done otherwise, that is undue influence. It is not necessary that coercion should be shewn to establish undue influence. Fraud is equally potent:

C. A.

1911

Sept. 13.

C. A. 1911

EUCLID AVENUE TRUSTS Co.

v.

HOHS.

Boyse v. Rossborough (1857), 6 H.L.C. 2, 49. If she gave her testimony in such a way as to be believed by the trial Judge, the number of witnesses against her should have no weight. She was the best witness as to what influenced her. The plaintiffs are not empowered by their charter to take such a mortgage as this; the making conferred no rights upon them; and the mortgage is not enforceable. There is a first mortgage outstanding, and the legal estate is in the first mortgagee. This action, for possession, is for the purpose of investing the plaintiffs with something they have not got. Any right they have to possession is by virtue of the covenants contained in the mortgage-deed. The plaintiffs come to the Court, not to defend a title vested in them, but to ask the Court to enforce a contract which they had no power to make. The mortgage, again, is not enforceable because the taking of it was contrary to the Loan Corporations Act, R.S.O. 1897, ch. 205, sec. 117.

M. H. Ludwig, K.C., for the plaintiffs. Assuming that persons acting on behalf of the plaintiffs made the oral representation to the defendant Agnes E. Hohs that the mortgage was to be a mere formality and would not be enforced, evidence of the representation is not admissible to vary the written document, the mortgage-deed: Halsbury's Laws of England, vol. 7, sec. 1049; Henderson v. Arthur, [1907] 1 K.B. 10; Clarke v. Union Stock Underwriting Co. of Peterborough (1906), 8 O.W.R. 757, 758; New London Credit Syndicate v. Neale, [1898] 2 Q.B. 487, 489, 490; Free v. Hawkins (1817), 8 Taunt. 92. Complete delivery of the mortgage was made, and the defendants are estopped from setting up that it was to be a mere formality: Halsbury's Laws of England, vol. 10, sec. 693, note (g). The evidence does not establish that undue influence was used to induce the defendant Agnes E. Hohs to give the mortgage, nor that the transaction was immoderate and irrational, nor that any advantage was taken of her confidence, so as to bring the facts within Bank of Montreal v. Stuart, [1911] A.C. 120. According to the evidence, the plaintiffs had power to take the mortgage; the foreign law was proved by an expert witness. If the plaintiffs have not power to hold land in a foreign county, the conveyance is voidable only, and only the Crown can forfeit: McDiar