MHS Transactions, Series 3, 1956-57 Season
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May I be permitted to open with a few references to the ownership and transfer of title to land, in what is now Manitoba, in the three centuries prior to the year Manitoba became a Province. In 1669, King Charles II of England signed a document of transfer of an area of land in North America, which area is described at great length in the document, but for present purposes may be described simply as all the land in the watershed of Hudson Bay. This transfer was in favour of "The Governor and Company of Adventurers of England, trading into Hudson's Bay." Of this Company the King's nephew, Prince Rupert, was the leading spirit and, appropriately, the charter discloses that the area shall henceforth be known as "Rupert's Land."
The area of this immense tract was added to by the adventurous explorers and traders of this great Company during the succeeding two hundred years. The limits of the original grant were extended southward until it included a part of North Dakota, westward and southward to where the Columbia River joins the Pacific Ocean, and northward until the boundary rested on the Arctic Ocean.
The title to the vast area in the original grant was a somewhat dubious one. By the Treaty of St. Germain-en-Laye, 1632, The King of France was possessed of a better title to the area than His Majesty Charles, but the transfer by Charles was implemented by the Company going into possession, and remaining in possession. As you know, title to land can, even today in various jurisdictions, be acquired by individuals if they have been in undisturbed possession for many years, but such is not the case under the Manitoba Real Property Act.
It is of interest to note that the possessory rights of the aboriginal inhabitants of the area - its original first possessors - were not considered by King Charles when he made the grant, but King Louis of France would have been equally indifferent to the rights of the Indians.
In the years following the grant to the Hudson's Bay Company, the questionable title of the Company had been validated by the Treaty of Utrecht, 1713, confirmed by the Treaty of Paris, 1763, by which Treaty, France surrendered all of Canada to the British. Thus it may be assumed that the company at last had a good and safe holding title to the land in the grant.
The next transfer of title which is of interest to us is that of the Hudson's Bay Company to Lord Selkirk, in 1811. At that time, the Company transferred an area of 116,000 square miles, part of the lands given to the Company by King Charles. Lord Selkirk was a man of vision, whose compassionate nature was stirred by the desperate plight to which the poorer farm people of Scotland were reduced in the years following the Rebellion of 1745. Upon obtaining this grant, Lord Selkirk offered to pay the expenses of any of the Scottish cotters who would come to the Red River as settlers, and many accepted and many came out in 1811 and the four following years.
The tract of land granted to Lord Selkirk roughly corresponds to what was to become the Province of Manitoba as it was in 1870. In 1836, the Hudson's Bay Company repurchased from Selkirk's heirs all the lands originally granted to Selkirk twenty-five years before. This contract between the Selkirk heirs and the Company did not specify that any deeds given by Lord Selkirk to any of his settlers during the tenure of his ownership were to be confirmed to the settlers by the Company, but the Company honoured these grants.
Now we come to one of the most famous transfers of land in history, one that has been called "The greatest single transfer of territory ever made, excepting those which may have resulted from a War". This was the sale of the territory of the Hudson's Bay Company to Canada in 1869. Provision for this passing of title had been made in the British North America Act of 1867, so Rupert's Land joined Confederation when Manitoba became a Province on July 15, 1870. The conditions of transfer included the payment of £300,000 to the Company but, in addition, the Company was allowed to retain one twentieth of the fertile land and five hundred acres of a reserve around each of its trading posts. These lands were to be allotted to the Company as soon as surveys could be made. Eventually, the Company secured title to almost seven million acres of land. All deeds to settlers given by the Company were confirmed, and any claims by the Indians to portions of the territory were to be settled by Canada. At that time, Fort Garry at the junction of the Red and Assiniboine Rivers, where the bulk of the trading was carried on, had around it a settlement of about two hundred people, a half dozen or more shops of the free traders, and an almost equal number of taverns.
This collection of a few score wooden shacks was the embryo of a great city. The census of 1871 gave it a population of but two hundred and forty-one, but it became an incorporated town in 1873 and the City of Winnipeg in 1877.
Before the agreement whereby the Canadian government was to purchase the Company's land was completed, Canada sent surveyors into the Red River settlement to survey the lands, that they might be readily sold to the many settlers who, it was hoped, would soon be seeking land in the area.
Up to this time, the only surveyed lands in the settlement consisted of the rows of lots along the Red and Assiniboine Rivers. The Hudson's Bay Company had used these early surveys when it granted deeds to purchasers. These lots had a frontage of ten chains on the river by two miles in length, with the privilege to the owner of acquiring a further two miles extension-this second parcel was known as the "Hay Privilege" or the "Outer Two Miles" of the river lot. This was the only form of survey of which the settlers had any knowledge and, as there were rumours that the whole of the area was to be surveyed into townships six miles square, each to contain thirty-six sections of six hundred and forty acres, there was great apprehension in the community, as some of the settlers feared their homes and farms would be taken from them. These fears were strongest among those from Quebec where the same system of surveys existed along the rivers. This situation was among the causes which led to the Red River Rebellion of 1869-70.
The arrival of Wolseley's Expedition at Fort Garry on August 24, 1870, and the flight of the rebel leaders closed that chapter of the history of Manitoba. In the summer following, the surveyors started their work again. Within a few months, the newly surveyed lands were open as homesteads for the new settlers who were coming into the settlement in steadily increasing numbers.
Since that time, it has been usual to assume that title to land in the Province can be issued only after some formal survey has been made and registered. Yet, the ownership of land has from time immemorial passed without surveys, as we know them. Even in Manitoba today, instances can be found of land being sold and title issued to the lands described by what is known to conveyancers, as a "metes and bounds" description, which may be liberally translated as "limited by measurement and boundary". The most interesting example of this, that comes to mind, is the title to "Hawthorne Lodge" near St. Andrew's Locks, on the Red River. The history of this notable property so fascinated me that I made a detailed study of it as, apart from its historic interest, I consider that the fact that the province of Manitoba issued a guaranteed title to the property is one of the best evidences of the flexible efficiency of the system of land titles we have in the province.
To illustrate my point, I ask you to bear with me while I recite the description of this property in the deed from the Hon. Alfred Boyd to Dr. David Young in 1871. From this, it will be apparent, that the surveys of the period did not have the certainty of the modern surveys.
"ALL AND SINGULAR, that certain parcel or tract of land and premises, situate lying and being in the said Parish of St. Andrews North and in the County of Lisgar and the Province of Manitoba aforesaid and being composed of part of lots numbers One Hundred and Sixteen (116), One Hundred and Seventeen (117), and One Hundred and Eighteen (118) in the said Parish of Saint Andrews North as surveyed by A. H. Vaughan, D.L.S. and which may be better known and described as follows: that is to say, Commencing at a point at high water mark on the West side of the Red River. Thence North sixty degrees West astronomically (at forty-five links there is an offset at right angles to the left nine links to an oak tree blazed on three sides) five chains and sixty links to the middle of a brook. Thence North sixteen degrees East, following the said brook, one chain and eighty-two links intersecting a granite boulder to the middle of a bridge which crosses the said brook. Thence North Fifty-six degrees and ten minutes East following the general course of the middle of the said brook Eight chains and thirty links to the said Red River.
Thence South Fifteen degrees West Nine chains and seventy links along the said Red River to the place of beginning. Being bounded on the East by the said Red River, on the North and West by the said brook and on the South by the fence being the Northern boundary of the parcel of land one chain wide bought from James Gunn by the said party of the first part through which the late B. R. Ross had a right of way to the Red River aforesaid. CONTAINING by admeasurement Three acres one rood and five perches of land be the same more or less.
AND also the right of way to the river from the aforesaid lot over the land which was purchased from one James Gunn by the said party of the first part and also the right of way to and from Hawthorne Lodge by the road now used for that purpose to the main highway."
Application was made later to bring the land under the Manitoba Real Property Act and the District Registrar, having taken evidence, decided the applicant had a safe holding title and issued the guaranteed title, according to a plan of survey which the District Registrar had directed to be made.
Few know it, but the certificate of title issued is the only one in Manitoba in which the Registrar General, appreciating the historic significance of the place, permitted the inclusion of the name of the property in the Certificate of Title. Today, as part of the description of the land, appear the words "known as Hawthorne Lodge". A proud distinction indeed, but clearly no home in the province is so steeped in tradition. In support of this statement, may I give the names of the eminent men who have been owners of the property, as this is the only place where they will likely be recorded.
The first owner was George Taylor, the official "Surveyor of the Colony", who made the first complete survey thereof, and left the famous "Register B" containing the names of the owners of all the lands he surveyed. This Register has been appropriately described as "The Doomsday Book of the Red River". Mr. Taylor held title from 1839 to 1848. He was followed in ownership by John Flett, 1848 to 1858. Mr. Flett was an officer of the Hudson's Bay Company. In 1858, Mr. Flett sold it to Chief Factor John Edward Harriott, a distinguished officer of the Hudson's Bay Company. In 1862, it became the home of Judge John Black, the President of the Court of the Governor and Council of Assiniboia, the Supreme Tribunal of Rupert's Land. Recorders had been the chief legal authorities in Red River previously, but it is believed Black was the first person to be designated a Judge. From 1868 to 1871, it was the home of the Hon. Alfred Boyd, the first premier of Manitoba. There is record in the Provincial Library of Manitoba that he had the unique distinction of being appointed to that position, and that of Provincial Secretary on September 16, 1870, to assist the Governor until the first election could be held, which position he held until December 14, 1871. Following the election, he became Minister of Agriculture and Public Works in the first Cabinet, later resigning from the legislature to provide a seat for the Hon. John Norquay who succeeded him in these portfolios. Dr. David Young acquired the property in 1871 and held it until 1905. Doctor Young was one of the most distinguished physicians of the province, and from 1885 to 1911, was Superintendent of the Selkirk Mental Hospital, and was the oldest member of the profession in the province when he died in 1931. From 1905 to 1914, Roderick Ross Sutherland, M.A., son of Senator Hon. John S. Sutherland, was the owner. He was one of the first class to graduate from the University of Manitoba as B.A. 1882, and M.A. 1885. He was called to the Bar, 1888. Following him, was the Hon. Robert Jacob, K.C., Attorney-General of the province in the government of Hon. T. C. Norris, who held the property from 1914. In 1918, he sold it to Dunbar Hibbard Hudson who built the present Hawthorne Lodge and lived there until 1946. A wealthy man, he left the residue of his fortune to The Winnipeg Foundation. On his death, Hawthorne Lodge passed to the Hon. James O. McLenaghen, K.C., one of Manitoba's most distinguished Attorneys-General who died there in 1950, from whose estate it passed to the present owner, Lt. Colonel G. P. R. Tallin, Q.C., the learned Dean of the Faculty of Law of the University of Manitoba.
Thus, the records show that from 1839 to the present day, those who dwelt at Hawthorne Lodge were men of high character and distinction, honoured by their fellow-men, contributing much to the development of Rupert's Land, and of the New Canada of the West that came with the founding of Manitoba.
In Manitoba prior to 1870, dealings with land followed the practice in Britain, except that there were no Registry Offices; however, the Hudson's Bay Company allowed anyone who wished to deposit a document affecting land to do so in the office of the accountant of the Company, but there was no obligation to do so.
When Manitoba became a Province, the Registry Act was one of the first statutes passed by the Legislature and Registry Offices were opened in each county.
Today, the title to land in Manitoba is either under the Real Property Act or the Registry Act of the Province. Almost eight-five percent of the valuable land in the province has been brought under the operation of the Real Property Act since the Act came into force July 1, 1885. It is in the earlier settled districts of the province where the greater part of the lands remaining under the Registry Act are still to be found, but in the cities, larger towns, and more recently-opened districts the titles are under the Real Property Act.
The Registry Act of Manitoba is a product of the evolution of the real property law of England and it was under this system that all registrations affecting land in the province were made prior to 1885. The chief principle of the Registry Act is to give notice by registration, which registration makes the instrument a prior instrument for what it is worth. In practice, in the early days in Manitoba, the whole document was copied into an abstract book in the Registry Office. Later, this cumbersome practice was not followed, only brief particulars of the document were entered on the abstract, but the person making the registration was required to present the document in triplicate; one copy being placed in the regular files of the office, one copy returned to the person requesting registration, and the third copy filed by the Registrar in what was hoped was a safe depository, remote from the place where the office copy was filed. With these precautions it was hoped to ensure that at least one of the three copies would escape loss by fire, or loss in any other way.
Under the Registry Act the following features militate against efficiency and security; any dealing with a title necessitates an investigation of every document, deed, mortgage, passage by devolution on death of an owner, or by legal process, back to the grant from the Crown, before an attorney can safely give any opinion on the validity of a title. This may entail days of work by a lawyer and thus the man who sells or buys a property of small value may have a bill for legal fees far out of proportion to the value of the land. Further, as there is no obligation to register documents, they may be retained by an owner in his own depository. There may be difficulty, therefore, in locating all documents affecting the title, any one of which might disclose interests at variance with those of an apparent owner. The lawsuit based on lost or destroyed deeds has, through the centuries, provided one of the most lucrative sources of income of lawyers.
Again, what are known as "clouds on title" appear on an abstract of the title in a Registry Office. Such a "cloud" may occur as any instrument containing a legal description of land, and bearing the signature of anyone purporting to have an interest in the property, with an affidavit of a witness may be registered and take its place on the abstract, though it may have no legal effect whatsoever, yet an action in court may be necessary to remove it from the record. All these features cause delay, danger and expense.
Under the Registry Act, a mortgage is a conveyance to the money lender, of the land mortgaged, with a proviso that the conveyance shall be void on satisfaction of certain covenants made by the borrower. This places the mortgagee in a most favored position, nevertheless, the practice under the Manitoba Real Property Act has proved so satisfactory to both the mortgagor and the mortgagee that today when application is made for a loan to be secured by mortgage and the property effected is under the Registry Act, the lender frequently insists that the property be brought under the Real Property Act before advancing the money.
The Registry Act is the system found in the eastern provinces of Canada (excepting parts of Ontario) and the United States. Many of the states in the latter country have on their statutes an Act similar to the Manitoba Real Property Act, but in the United States the title guarantee companies, which issue policies of insurance guaranteeing titles, have strong lobby groups, which persuade the legislators not to put the acts in force. To my own knowledge, mortgage companies lending money in California, and having abstract and title guarantee companies as subsidiaries, have actually obliged a borrower to withdraw his land from under this new system and place it under the old abstract or Registry Act system, before they will advance the money. Thus, a company not only makes the usual profit of a money-lender, but makes a further profit by selling the borrower a policy guaranteeing his own title which, up to that time, had been guaranteed by the state.
With these few remarks on the Registry Act and before entering on a discussion of the Real Property Act, it would be appropriate to mention something of the careers of the men who introduced this new system into Manitoba, particularly as no record of these early administrators has hitherto been assembled. During the four years following the passing of the Act in 1885, three men filled the position of Registrar General, but the names of these three men are entirely unknown to the present generation. In the circumstances it is hoped that there is sufficient justification for mention of pertinent points of their careers. The first Registrar General was one of the most colourful figures in the public life of Manitoba, in the days when Manitoba had many such, so I will set down something of what my research has revealed as to that ambitious, talented, and robust personality. The Hon. James Andrews Miller was the son of a barrister practicing in Galt, Ontario, where the future Registrar General was born in 1839. He took his B.A. with honours in classics and mathematics at Trinity College in Toronto in 1859, followed by degrees of B.C.L., and D.C.L. In 1863 he was called to the bar and soon had a lucrative practice in St. Catherines, Ontario. In 1880 he was created a Q.C. and in October of the same year, he came to Manitoba, on his appointment as a puisne Judge of the Superior Court of this Province.
On December 31, 1882, Mr. Justice Miller resigned from the Bench, ostensibly at the request of the Hon. John Norquay, the then premier of the province, who was said to want Mr. Miller as Attorney-General in his cabinet, but it is hinted the real reason was that Miller was incensed because he was not made Chief Justice in succession to Chief Justice Wood who died October 7, 1882. The resignation of the Hon. A. M. Sutherland, the Attorney-General, opened the way for Mr. Miller, who was sworn in as Attorney-General. In the general election of January 23, 1883, Mr. Miller attempted to obtain a seat in the Legislature, being a candidate in the constituency of Rockwood. However, he was badly defeated by the Liberal candidate Samuel Jackson.
The election campaign was conducted in the free-and-easy Western style of the period; candidates and their supporters driving through the constituency distributing liquor and other presents to the homes of the electors. When the Attorney-General was defeated, an action was at once started to have the victor unseated. The case went on for weeks; the most damaging evidence being produced. As might be expected, Jackson was unseated for corrupt practices, and his defense is alleged to have cost him six thousand dollars. The newspaper which supported Jackson castigated Miller and said: "Jackson would beat him four to one if he ever again attempted to run in Rockwood."
The subtle Attorney-General had other plans, however. The town of Rat Portage was in disputed territory, that is, it was uncertain whether it was in Ontario or Manitoba; the eastern boundary of the Province being not then officially defined. Manitobans sometimes claimed the boundary of Manitoba was somewhere east of Port Arthur, Ontario.
Rat Portage was then a settlement of approximately one hundred families. Here Manitoba maintained a Courthouse, Land Registry Office, jail, magistrates, and a police force of twenty-five men. Ontario had the same, and many conflicts arose between the two authorities. If a man was jailed by one police force and he had friends in the other force, the jail would be broken into and the man released by the other force. In one foray, the Manitoba jail was burned down and Premier Norquay, with a strong force, occupied the town and overcame the Ontario police force and brought them back to Winnipeg for trial. So life went on in this exciting way. The district had a member in the legislature of Ontario where there was a Liberal government at the time, so Mr. Miller deemed it only fair that it should have a member in the legislature of Manitoba, and he announced that he would be the Conservative candidate. Mr. Miller promised the electors that he would at once arrange to have the district confirmed as part of Manitoba, and at meetings flourished a telegram from Sir John A. MacDonald, the then Prime Minister of Canada, wishing him success, and promising every support. Leading men of each party took part in the election and the campaign grew more heated every hour. To add to the confusion and conviviality, an election was to be held in Rat Portage for a member of the Ontario legislature on the same day as the Manitoba election. This was all that was needed to turn the event into a wild carnival of election corruption - all of which was thoroughly enjoyed by the population of which the vast majority were transient workers employed in putting through the main line of the C.P.R. which had just then reached Rat Portage. These men revelled in the entertainment most generously provided by the four candidates seeking their votes. It is doubtful if ever an election was conducted in such circumstances in any place in the realm of good Queen Victoria. The campaign was a hectic one, for if ever there was a frontier town this was one, in fact, it was an over-lapping frontier town. For days the fiesta continued, growing more uncontrolled every hour. This was now to provide the excuse for the final touch that completed the festivities. It will never be known who thought of the next move, but it was hinted that it came from Mr. Miller's fertile brain. A rumour had been circulated that the Ontario police had secret orders to seize certain ballot boxes containing the ballots of those voting for the candidates contesting the seat for the Ontario legislature, to prevent the votes being counted. In the circumstances, it was but natural that Attorney-General Miller should be fearful that his ballot boxes might be seized, so he ordered the 13th Field Battery of Winnipeg under the command of Lt. Col. William Kennedy - fifty-five strong and armed with rifles - to occupy the town on election day. In this he must have had the acquiescence of the government at Ottawa. A special train was chartered to carry the troops from Winnipeg, with four cars attached for the voters. Naturally, it was expected that these men would vote for Mr. Miller. For reasons that may be apparent, Mr. Miller finished his campaign and returned to Winnipeg the night before the election. The newspapers of the day, reporting the election, described in forthright language how elections were carried on in the dawn of democracy. As was expected, Mr. Miller received a sweeping majority. The Manitoba Free Press, reporting the event on September 29, 1883, said editorially: "The majority for Miller was made up of the voters taken out from Winnipeg like so many cattle. There are not enough bona-fide property holders in the Constituency to make up the number who voted for Mr. Miller. These men were virtually hired by the Attorney-General and his government. It is not pleasant to see men who are supposed to be in charge of our legislation, not only break the laws openly, but encourage others to break them too. The Attorney-General's support was derived from the lowest order of street loafers and bar-room rowdies of Winnipeg. There is strong reason to suppose the funds needed for this were supplied by Ottawa. Men went from Morris and Emerson to vote, who did not own a foot of property in the whole division. The Attorney-General should never be allowed to hold his office with the fraudulent manufacture of votes as a basis of his tenure." The paper also stated: "The most unhappy man over the result should be John Norquay. Mr. Miller, now that he is in the government, will never rest until he is Premier unless his overweening ambition might land him out of the Cabinet as it did off the bench, when aiming for the highest position thereon a short time ago."
So Mr. Miller sat in the Manitoba Legislature as member for Rat Portage, but not for long. In 1884, the surveys undertaken by the Dominion government revealed that the territory was part of the province of Ontario, and in December of that year, Mr. Miller resigned the position of Attorney-General and from the Legislature. As the Real Property Act was then about to be passed by the Legislature, he was made the first Registrar General to administer the Act.
People lived robustly in those days, and Mr. Miller moved in a circle of bon vivants. It is a matter of record that, but a few years before, the Chief Justice of Manitoba had been reprimanded by the Minister of Justice for "acts of public intoxication." There is no evidence that this recognition of his conduct adversely affected his career, as he remained Chief Justice until his death years afterward. A news item in the Free Press of November 2, 1886 states in part: "Mr. Miller a few days ago, slipped on the stairway of the McKenzie Hotel and hurt himself. To one so heavy as Mr. Miller, the fall was a serious one, his ribs were fractured and a cut inflicted on the back of his head; he died this morning; he left a widow." The same issue contained an editorial interesting in several ways. To quote: "The news of Mr. Miller's death has been received on every side with feelings of regret.
Though his life was a short one, it has been a busy one, bringing him in contact with men in university life, at the bar, on the bench, in politics, and just previous to his death, as Registrar General for the province under the Torrens Act. At the bar, his talents and ability were universally acknowledged. He had a judicial mind of high order, and legal ability above the average. On the bench, to which he was elevated in 1880, he showed the same judicial talent which he displayed at the bar, but even in more marked degree. His decisions were regarded with confidence and respect. His descensus from the bench to politics was, in our opinion, ill-advised, but of this and his subsequent political career we will say nothing, except that in common with that of his colleagues, the course of the late Attorney-General met with our disapproval.
Outside the pales of political and professional life, there is another sphere in which qualities of the heart and mind more or less foreign to law and politics, have play, and in social life the late Mr. Miller found his good natured geniality, love of sports, and appreciation of the refined pleasures of life, well-received.
We have nothing more to say, we can only express the regret which all feel, point the moral, and extend our sympathies to those mourning the loss."
The tragic death of Mr. Miller brought the appointment of Felix Chenier as Registrar General pro-tempore. Mr. Chenier was a gentleman of an entirely different type who had studied law in Quebec and had come to Manitoba as a member of the Quebec Battalion of Wolseley's Expedition to the relief of Fort Garry. He became a member of the bar of Manitoba on June 29, 1871, in the only way possible at that time, by an Order-in-Council of the Lieutenant-Governor. He was elected to the second legislature of the province representing Baie St. Paul for the years 1874-1878. He was the first Registrar of Deeds for the County of Marquette, from which office he came into the Winnipeg Land Titles Office as an Examiner of Titles on the introduction of the Real Property Act in July, 1885. He held the position of Registrar General from November 1, 1886 until the appointment of Mr. Coutlee July 1, 1887. Mr. Chenier then became Deputy Registrar General.
Louis William Coutlee, son of the then Sheriff of Ottawa, was born in Hull, Quebec in 1851. He graduated from McGill University as B.C.L. in 1873 and was called to the bar of Lower Canada in 1873, the bar of Upper Canada in 1875, and the bar of Manitoba. 1885. He served in the Fenian Raids of 1866 and 1870 and the North West Rebellion of 1885. Lt. Col. Coutlee joined the Manitoba Civil Service in 1883 and was Deputy Attorney-General before he became Registrar General.
From Mr. Macara, who followed Coutlee as Registrar General, I learned of the dramatic exit of Mr. Coutlee from office. In 1883, Joseph Martin, a lawyer of great political ambition, was elected by the Liberals of Portage la Prairie to a seat in the Legislature of Manitoba. That stormy petrel of politics in early Manitoba was an amazing master of political strategy and platform oratory. He was, it is believed, the only man who was ever a member of four legislative bodies in the Empire. He became Attorney-General of Manitoba in 1888, a member for Winnipeg in the House of Commons at Ottawa in 1893, and in 1898, became Attorney-General of British Columbia, and later Premier of that Province, and then in 1910, became the Liberal member for St. Pancras, London, in the Imperial House of Commons.
While Martin was a practising lawyer, he had occasion to attend on the Registrar General on behalf of a client. The documents presented by Mr. Martin did not satisfy the critical Mr. Coutlee who declined to approve registration. The fiery Mr. Martin and the adamant Mr. Coutlee clashed, strong words passed, and the Registrar General is reported to have ordered Mr. Martin out of the office. Mr. Martin never forgot anyone who thwarted him. Strong words and direct action were his stock-intrade. The year after Mr. Coutlee's appointment, the fortunes of politics made Mr. Martin, Attorney General, and thus, the head of the Department which included the Land Titles Office of which Mr. Coutlee was the head.
A further clash arose between these two strong-minded men. This time Mr. Martin was in a position to take the direct action of which he was a master. One can imagine he rather enjoyed himself when, on October 28, 1889, he signed a recommendation to the Executive Council for the abolition of the office of Registrar General of Manitoba. As soon as the Order-in-Council was signed, the Attorney-General marched across Broadway into the office of the Registrar General, and is reputed to have said: "Mr. Coutlee, I hear you are writing a book on The Torrens System - I do not think you know anything about it - but that you may have more time to work on it, you are relieved from duty. Here is an Order-in-Council abolishing your position. Take your hat and coat and get out."
Mr. Coutlee's book, A Manual on the Law of Registration of Title to Real Estate in Manitoba and the North-West Territories, was duly finished and published the following year, and it became a standard work on the subject. A later government of Manitoba put the book into the libraries of every Land Titles Office in Manitoba. The work had an exceptional reception by the legal profession, and Mr. Coutlee, in his day, was acclaimed an authority on the subject not only in Canada but wherever the Torrens System had been introduced throughout the world.
Within a year Attorney-General Martin re-established the office of Registrar General, appointing William Elliot Macara to the position on September 21, 1890, and he held the position until his death on May 15, 1929. Mr. Macara joined the staff of the Winnipeg Land Titles Office as an Examiner of Titles on January 1, 1887, and was District Registrar at the time he was appointed Registrar General. Beyond doubt he was one of the most able administrators of the Torrens System and gave Manitoba a system and practice unsurpassed in Canada. The Torrens System was placed on the statutes of Ontario in the same year as in Manitoba, but in Ontario the members of the legal profession would not, for many years, advise their clients to adopt it. In Manitoba, due to the great respect in which Mr. Macara's administration was held, the system steadily increased in popularity with lawyers and laymen, until today, only a small percentage of the lands in the province remain outside the Real Property Act. In itself, this was a triumph, as it must be remembered that, for years after this new system of title-holding was placed on the statutes of Manitoba, the vast majority of the lawyers practising in Manitoba had graduated in law in provinces where the system was unknown. A further tribute to Mr. Macara was the fact that, in 1905 and 1906, when the Provinces of Alberta and Saskatchewan were created and the Torrens System became law in those provinces, the practice Mr. Macara had formulated for the Land Titles Offices of Manitoba was adopted in full for the offices of the new provinces. Manitoba and Canada owe a great debt of gratitude to Mr. Macara for the development of the system during the thirty-nine years of his administration. In 1923 he was created a King's Counsel, and more than once it was mentioned that his services would be recognized by a knighthood; such an honour was richly deserved, and would have been particularly appropriate for the grandson of Sir Robert Macara, Colonel of the Black Watch, who was killed at Waterloo.
The Manitoba Real Property Act is based on the system introduced into South Australia by Sir Robert Torrens in 1858. Torrens, while collector of customs in Port Adelaide, South Australia, conceived the idea of a land transfer system based on the Shipping Acts. These Acts provided an efficient mode of transfer of ships, on the principle of conveyance by entry in a public office. By adapting this principle to land titles he relieved dealings with lands of many of the involved practices which had hampered it in past ages. This was an entirely new method of dealing with land, but its advantages were at once apparent, especially when the validity of the certificates of title was guaranteed by the state or province. This system, with modifications, was later introduced into other Australian states and into many other parts of the world. Today, there are more than sixty jurisdictions of the system in the British Empire and Commonwealth.
The organization and administration of the Manitoba Real Property Act is under the Department of the Attorney-General. The chief officer of the System is the Registrar General who, in earlier years, ranked as a Deputy Minister in this Department. To ensure that men of experience held the appointment of Registrar General, the Statute required that the appointee should have at least ten years standing at the Bar, and a District Registrar should have at least five years standing before being appointed to his position. The reason for this will be apparent when consideration is given to the powers and responsibilities delegated to these officers.
The Province of Manitoba, with a population of over 850,000, in an area of 246,712 square miles, of which the land surface is 219,723 square miles, the balance being covered by waters or lakes, has an assessed value of approximately one billion dollars and is divided into eight land titles districts. The chief officer of each district is a District Registrar who administers both the Real Property Act and the Registry Act in his district. Approximately one half of the valuable settled land surface of the Province is in the Winnipeg Land Titles District, and considerably more than half of the population of the Province is in this latter district. Today, the staff of the Winnipeg Office includes nine lawyers and an Examiner of Surveys who is a qualified land surveyor. The Registrar General and the Examiner of Surveys must approve of all plans of survey in the province before they are registered. By statute, the title to the land must be under the Real Property Act before the plan is entered for registration.
This new Manitoba law, which was to revolutionize the conveyacing of lands in the province, had, at its beginning, a preamble which was taken almost in its entirety from the Act as passed by the legislature of the State of Victoria, Australia. It was expressed as follows in the Manitoba Act of 1885:
"Whereas it is expedient to give certainty to the title to estates in land in the Province of Manitoba and facilitate the proof thereof and also render dealings with land more simple and less expensive."
In 1889, the Legislature of Manitoba passed an amended Real Property Act which did not repeat the above preamble, but has a paragraph giving the "Objects of the Act" in the following words:
"To simplify the title to land and give certainty thereto, to facilitate the proof thereof and expedite dealings therewith and the Act shall be construed in a manner to best give effect to these objects."
From the wording of these two paragraphs emerge the two outstanding principles of this new system: firstly, certainty of title and facility of proof; secondly, simplicity in dealing with land.
It will be noted that the above "preamble" concludes with the words that the Act is "to render dealings with land less expensive," and the paragraph of "Objects" ends with the words that the Act "is to be construed in a manner to best give effect to these objects." These two latter quotations may be dismissed for the present. Nevertheless they have been great contributing factors in the success of the system. That dealings with land were less expensive under the new system, as compared with dealings when the title was under the Registry Act, was at once apparent and the power given the District Registrar to exercise a discretion to permit registration of documents which did not fully conform to the regulations has enabled the Act to be "construed in a manner to best give effect" to the act. These two rather subordinate factors proved most important in establishing the popularity of the system with both lawyers and laymen.
The first "Object" of the Act, "certainty of title and proof thereof," is obtained by the issue of a Certificate of Title, which is a document declaring, by authority of the Act, that the person named therein is the registered owner of the specified estate. This Certificate makes it unnecessary to consider any change of ownership prior to the date of the certificate and is the final and absolute evidence of the ownership. The second "Object" of the Act, "simplicity in dealing with land," is ensured by requiring a document presented for registration to be in substantial conformity with one in the "Schedule of Forms" appended to the Act. This schedule lays down the form of transfer, mortgage, lease, etc., and a form of caveat which may be used to protect equitable interests; this use of the forms in the schedule facilitates transactions and secures a desirable uniformity. Every document in the form provided, executed in the manner required by statute and practice, is a "direction" to the District Registrar to make the appropriate change in the title, but until the document is actually registered, it does not affect the title; it is simply evidence of some change in the rights of the parties named therein. It is only after a document has been signed and sealed by a District Registrar that the document creates, transfers, charges, surrenders, releases or discharges the estate or interest concerned. The dangers due to faulty or careless conveyancing are minimized by the maintenance of a legal staff in each Land Titles Office to examine and approve the validity of each instrument presented for registration, with power to reject such as are defective or do not substantially conform to the statutory instrument, thus preventing the "cloud on title," so common under Registry Act or other older systems of registration. As the government guarantees the title, it is but right that it should prescribe the forms of conveyancing and have each document approved by its own legal examiners before acting upon it.
Following the injunction in the preamble of the Act of 1885 that dealings should be made less expensive and, as an inducement to bring lands from under the Registry Act to the Real Property Act, the province has kept the fees for registration of all documents under the latter act at a minimum. Another inducement was the fact that the assurance fee for guaranteeing the new title is collected only once in Manitoba, as distinguished from other jurisdictions of the Torrens System, for instance in Alberta and Saskatchewan. These provinces have insured continuous additions to the Assurance Fund for all time by collecting contributions to the Fund on each succeeding transfer of land. Incidentally, the companies guaranteeing titles charge a fee on every transfer of a guaranteed title which is approximately the same as that paid in Manitoba by the applicant for the first title under the Real Property Act, which fee, once paid, gives a perpetual guarantee. Throughout the years, the people of Manitoba have had a great benefit from the lowest tariff of land titles fees in Canada, with the result that every Land Titles Office in the province has a steady flow of applications from owners of lands remaining under the Registry Act to have their titles brought under the Torrens system.
Earlier in these remarks, reference has been made to the Assurance Fund and to the government guarantee of title. The introduction of this guarantee of title was beyond doubt one of the most important of all modern land reforms. The people of the provinces and states which enjoy the many advantages of the system have accepted its benefits for so long that they no longer appreciate the great advance which was made by the introduction of the Torrens system. Queen Victoria, however, recognized Robert Torrens' great services to the state by conferring a knighthood on him.
The guarantee was arranged in this way. An Assurance Fund was created by the Act to provide compensation for the public and protection to the province for any loss which may occur through any omission, mistake or misfeasance of an official in the Land Titles Office during the performance of his duties. The money for the fund is obtained by collecting an assurance fee of one quarter of one per cent of the value of the land, which is paid by the owner who applies to have his land brought under the Real Property Act. In spite of this almost nominal rate of charge, approximately three quarters of a million dollars has been collected for the Manitoba Assurance Fund since 1885 but, as the claims against the fund have been rare, the government has taken the fund into the consolidated revenue of the province and allows only seventy-five thousand dollars to remain in the fund. This is ample for, if the money in the fund was not sufficient to pay any claim, the government of the province would be obliged to supplement the fund. Great credit is due to the District Registrars of Manitoba; the high order of their administration being shown in the fact that, in the past seventy-two years, less than forty thousand dollars has been paid out of the Fund to those who claimed that they had suffered loss due to some error in the work of the staff of a Land Titles Office.
The method of bringing land under the operation of the Real Property Act now becomes of interest. In many jurisdictions of the Torrens System, initial registration of title to land is a purely judicial proceeding; the examiner of titles makes a report of his findings to a Superior Court and the Judge issues a decree directing the Registrar to issue a certificate of title to the applicant. After consideration, Manitoba dispensed with this expensive formality. Here the application to bring land under the Real Property Act is made direct to the District Registrar of the Land Titles District in which the land is located; the District Registrar being vested with all power necessary to deal with it.
In practice, the owner of land under the Registry Act makes written application to the District Registrar of his district to bring his title under the Real Property Act. At once the District Registrar makes a note on the abstract of the old system land, which closes the abstract to further registrations under the Registry Act. Then the Examiner of Titles goes over the abstract back to the Crown grant, and examines every document registered to establish a complete chain of title in the applicant. If "clouds on title" or any adverse claims are found the applicant's lawyers are called on to produce the evidence necessary to dispose of them. When the abstract is under investigation, the District Registrar has the powers of a judge, in that, he can summon witnesses to attend before him for examination under oath and, to facilitate proceedings, he may relax the rules of evidence, if he so decides. When the Examiner of Titles is satisfied that the applicant has a safe-holding title, he makes a report which is final and conclusive, and the District Registrar forthwith issues a Certificate of Title which will show the exact estate of the owner. It may be issued subject to a mortgage or encumbrance registered while the title was under the Registry Act, if the owner so requests. Should the adverse claims be such that the applicant cannot dispose of them, the application will be rejected and the abstract reopened for registrations under the Registry Act.
It is an essential principle of the system that, when a District Registrar issues a Certificate of Title, he forthwith becomes the protector of that title, and he will not accept any document purporting to effect that land unless he is completely satisfied that it is in order in every respect.
Now consideration may be given to the registration of a document of transfer under the Real Property Act. This does not only give notice of a transfer of title but, by the statute, the title is taken out of the transferor and vested in the transferee. The basic principle of the system is the registration of the title to the land, instead of registering the evidence of such title. Briefly, it is the statute not the document of transfer that takes the title out of one person and vests it in another. This certificate is conclusive evidence in every Court of Law or Equity that the person named therein has a valid title to the estate mentioned, except in the very rare instance when the Court finds that the transfer was based on fraud. The possession of a transfer by a person properly entitled to have it gives that person a right to register it, and the statute continues that right in the transferee even after the death of the transferor.
As mentioned earlier, mortgages under the Act differ from those under the Registry Act, in that, they do not operate as a conveyance of the land. They are simply charges on the land, but the Real Property Act gives the mortgagee the same rights and powers he would have had under a mortgage giving him the legal estate. In some jurisdictions of the Torrens System, when a mortgagor is in default, the mortgagee in a registered statutory mortgage must apply to the Courts for orders for sale or foreclosure. This most expensive formality is unnecessary in Manitoba; the District Registrar having been vested with all powers required in such matters. The Manitoba Act provides that, when a mortgagor makes default in a payment under the mortgage covenant for one month or such longer period as may have been agreed upon by the parties, the mortgagee may register a notice in the Land Titles Office and serve a copy on the mortgagor demanding payment and, in the same notice, advise the mortgagor that unless payment is made within a second month he will apply to the District Registrar for an Order for Sale of the property. On such an application, the District Registrar approves the conditions of sale and sets the date of sale. These conditions contain premises protective of the mortgagor. If the highest offer received at the auction sale is insufficient to pay the then amount of the mortgage and the costs of sale proceedings, the mortgagee, after waiting six months, his claim and costs still remaining unpaid, may apply to the District Registrar for an Order of Foreclosure which must be served on the mortgagor and on all persons having a registered interest in the land. If the default is not remedied, the foreclosure will be completed and title to the land will be issued to the mortgagee clear of the mortgage.
Equitable mortgages are not interfered with by the Act. For instance, an owner may deposit his Certificate of Title with a moneylender who may protect his investment by filing a caveat to give notice of his claim and maintain his priority over lien holders and judgment creditors. An equitable mortgage must be enforced through the Courts.
The Real Property Act provides a form of caveat that may be filed to protect equitable rights. Caveats are notices to the District Registrar by a person who claims a right or interest in land under the Act. This notice cautions the District Registrar and the public against dealings with the land which might be prejudicial to the rights of the caveator. As Coutlee expresses it in his book: "they are analogous to ex parte injunctions in restraint of dealings with estates or interests in land." A caveat prevents registration of dealings unless they are expressed to be subject to the claim of the caveator. Caveats may also be filed by a District Registrar or by direction of a Court to protect the interests of the Crown or a person under disability or to prevent an improper dealing with land. A registered owner who disputes the claim of a caveator may apply to the District Registrar for a notice to be served on the caveator, requiring him to take action in Court to maintain his rights within a certain period or his caveat will be lapsed and removed from the certificate of title by the District Registrar and if the Court finds that the caveator has filed his caveat wrongfully or without reasonable cause, that is, that he has not an enforcible right in the land, the Act provides that he shall be liable in such damages as the Court may decide.
Another registration is that of the Certificate of Lis Pendens. The plaintiff in an action pending before the Court effecting a specific piece of land may obtain one of these certificates from the Court, which, when registered in the Land Titles Office concerned, is noted on the certificate covering the land effected. This gives notice that some question is before the Court in which the title to this land is involved and anyone dealing with the land must take it subject to the suit then before the Court.
Certificates of Judgment, decrees, or orders of court for payment of money may be registered and from that time form a charge on all the lands which may be registered in the name of the debtor named in the court certificate.
Because of the time at our disposal only the essential principles of the Act have been mentioned and only a few of the more common documents which may be registered have been touched upon, and these very briefly, and references to practice in Land Titles Offices have been kept to a minimum.
The duties and powers of a District Registrar are set out in the Statute, and many of these have been noted earlier in these remarks. However, the District Registrar recognizes that, in any extraordinary transaction that comes before him, the Act places on him the responsibility of satisfying himself by inquiry as to every factor which might in any way affect the validity of the title concerned, and to assist him in this, he is empowered to require production of any supplementary evidence necessary to satisfy him of the bona fides of the parties to a transaction should it, in any case, appear to him proper so to do.
In many ways a District Registrar in Manitoba is given a greater judicial power than under any other jurisdiction of the Torrens System. As referred to above the District Registrar has exclusive jurisdiction in regard to proceedings on default under mortgage of lands under the Real Property Act. He, not a judge, issues the orders of sale and foreclosure. The Municipal Act of the province and the Real Property Act place in the District Registrar the entire supervision and authority over the issuance of title to land pursuant to sale of lands for taxes. In many states, even those where some form of the Torrens System is on the statutes, this is a most involved and expensive procedure; a Judge of a Superior Court being obliged to issue a judgment directing the issue of the Certificate of Title to the purchaser at the tax sale. Under the system in Manitoba these matters are handled in a most expeditious and inexpensive manner and, though tens of thousands of such tax titles have been issued in the past seventy years, I believe that there is but one instance of the Assurance Fund having to pay a claim to a person who established that he had suffered a loss due to the mistake of a District Registrar when issuing a title based on tax sale proceedings.
In this province, when a certificate of title is issued to an executor or administrator of a deceased owner, the Act makes the will "part of the certificate of title" and the District Registrar must be satisfied that the personal representative is carrying out the terms of the will or the Devolution of Estates Act before permitting registration of documents effecting the lands of the estate. Thus, the superiority of the Torrens System over the older systems of land registration (in connection with these estate transfers) is again immediately apparent. The evidence required by the District Registrar before he approves the transfer of the title must be placed on file in the Land Titles Office and becomes available for future reference. On the other hand, under the older systems of land registry, a deed from an executor or an administrator would be registered without production of any authority to deal with the land. After a lapse of several years, the solicitor for persons dealing with the land may find it difficult or impossible to obtain satisfactory evidence to support or disprove the document registered by the executors or administrators. It is impossible to estimate the money that has been and will continue to be saved to the people of Manitoba by the granting to the District Registrar of this power to supervise the transactions of executors and administrators. Due to the care exercised by the District Registrars in approving transactions regarding the lands of a deceased owner the legal profession has complete confidence in any certificate of title based upon the acts of executors or administrators.
A further evidence of the responsibility of a District Registrar is that the courts hold that it is the duty of the District Registrar to satisfy himself that a corporation owning land is dealing with it in accordance with the powers given it by its charter or act of incorporation; thus providing an exceptional protection to shareholders and creditors of such a body. In practice, every corporation, excepting those created by an act of the Legislature of Manitoba, must, before it can own or deal with land, file a copy of its charter or the statute of its incorporation in the Land Titles Office of the district where the land concerned is registered.
A District Registrar is also empowered to decide similarly the priority represented by the claim of a creditor under a registered certificate of judgment of court and that of a registered owner. The simple procedure in such cases is another evidence of the great saving in time and money to the parties involved. In many other respects a District Registrar exercises quasi-judicial powers in matters formerly in the exclusive jurisdiction of the courts, yet, due to the careful selection of the lawyers appointed as District Registrars and their judicious administration of these delegated powers, confidence in the system has steadily increased.
The Registrar General has duties under scores of Statutes, for instance: The Surveys Act, The Special Surveys Act, The Municipal Act, The Public Schools Act, The Religious Estates Act, The Wills Act, the Devolution of Estates Act, The Trustee Act, The Dower Act, etc.; also certain Federal Acts, notably the Bankruptcy Act, the Expropriation Act and the Act dealing with the custody and property of alien enemies. Under the Devolution of Estates Act the Registrar General has powers equivalent to a Surrogate Court Judge in dealing with the lands of an estate in cases where the interests of infants, lunatics and other beneficiaries of the estate are under a disability.
Thom, the Canadian authority on the Torrens System, in his book, The Canadian Torrens System, referring to the Registrar General of Manitoba, states: "He has more authority than the head of the system in any other Province." All District Registrars may refer questions of interpretation and practice to him. In any case where a District Registrar has made a ruling in some matter before him, which is not acceptable to the solicitor representing a party, the matter may be referred by the District Registrar to the Registrar General and, if the Registrar General rules that the District Registrar has acted correctly, the solicitor may take the matter before a Judge of the Court of Queen's Bench who may, if he wishes, decide the issue or refer it to the Court of Appeal of the province.
To reiterate the advantages of the system; first, every certificate of title issued is guaranteed by the government; second, it is simple; a lawyer can satisfy himself within a few minutes as to the state of the title; third, it is inexpensive. The forms of conveyancing provided by the Act are simple and the fees in Manitoba are believed to be the lowest in any jurisdiction of the Torrens System, yet the revenue is sufficient to maintain the existing offices and the staff.
Again, many matters of practice embodied in the acts of the Australian states were, after advisement, left out of the Manitoba Act as being likely to trammel and cramp a liberal and elastic interpretation of the spirit of the system. As one authority states: "The Registrar is at liberty to substitute moral certainty for legal certainty where the latter is unavailable, acting on the view that the purpose of the Act is to facilitate the transfer of land. Where this practice obtains, the system becomes correspondingly popular."
It must again be emphasized that the liberality of the interpretation of the Act, exercised by the District Registrars, has not resulted in a lowering in the standard of conveyancing. Rather, due to the watchful guidance of the Registrars General in the years of the inception of the system in the province and since, there has been a steady growth of accurate conveyancing for, while accuracy is insisted upon, such technical perfection as would impair the usefulness of the system or render it unpopular with the public or legal profession is not demanded. Therefore, it is only a matter of time before all the lands in Manitoba will have a guaranteed title under the Real Property Act.
After Mr. Macara's death, Mrs. Macara presented to the Winnipeg Land Titles Office, a handsome portrait of her husband by Sir Wyly Greer, President of the Royal Canadian Academy. This portrait is seen daily by scores of lawyers and law students who are unaware that it is probably the most valuable portrait of a Manitoban in the province.
Edmund Wyly Greer (1862-1957) was the first Canadian to receive a knighthood in recognition of his work as an artist. Studied in England, Rome and Paris. Exhibited with Royal Society of British Artists while Whistler was president. At the Paris Salon his picture "Bereft" won the gold medal and at the Pan-American Exhibition his canvas received the silver medal. President of the Ontario Society of Artists and the Royal Canadian Academy and a member of National Academy, New York.
Page revised: 22 May 2010
