Since so many are so confused, lets see what canlii and the reforms have to say about this.....
Common Law vs Equity
In order to understand how common law is the foundation to Equity we need to look to the history of English law (why so much is posted yet so many complain to many words), the monarchy creates law for government, these laws are grants, giving rights in exchange for duties to manage the interests of the monarchy.
From 1066 until great revolution of 1600 the English monarchy was considered supreme individual power, The Interregnum was from 1649–1660, The Restoration of the English monarchy took place in 1660 by 1688 there was a new British Monarchy.
The great revolution is the freedoms recognized today (yet not by some), simply the government (BOOK 1, CHAPTER 2 Of The Parliament) kicked out the monarchy and what used to be the kings (no king) councils (BOOK 1, CHAPTER 5 Of the Councils Belonging to the King) decided to create law in around about way (another topic for another day), by appointing a new “constitutional” monarchy to create laws for government to manage the civil law (BOOK 1, CHAPTER 12 Of The Civil State) for the municipal subject (BOOK 1, CHAPTER 1 Of the Absolute Rights of Individuals) within municipal corporation (statute W&M 5&6).
https://lonang.com/library/reference/bl ... -england/
Pre 1688 monarchy was a tyranny based on a monarchy not recognizing the rights of all people as equals within English law (only the lord manors and the Councils Belonging to the King had a trust as part of roman law), post 1688 the monarchy is a “constitutional” monarchy granted from those bound the the statute of use 1535 and fraudulent conveyances 1571 and since 1925 all are now equal within Equity, but not the common law.
The new constitutional monarchy is based on the title of the new monarchy (BOOK 1, CHAPTER 3 Of The King, and His Title) which also has duties as a trustee (BOOK 1, CHAPTER 6 Of the King’s Duties) based on a constitutional monarchy title (BOOK 1, CHAPTER 7, Of the King’s Prerogative) to make sure the new trustee has the power to manage the trust fully (BOOK 1, CHAPTER 8 Of the King’s Revenue) with the assumed rights as owner, as it is in all trust law within English law.
The most confusing part of English law is the 3 levels of trust (magna charta & statute west 1st (to lord manors), statute of uses 1535 (to Govt), Law of Property 1925 (to life tenant)) that was created by monarchy granted by law to govt and then the settlor constitutes the trust from taking from govt and becoming a life tenant).
The creation of the modern system of equity is the overthrow of the tyrannical monarchy and appointed a trustee to guarantee the absolute freedoms of a free agent and that choice.
The 3 levels of trust are as follows:
Settlor grants by express trust to the monarchy a land settlement
Monarchy grants to crown corporation by law (not trust) the right to manage the use of lands and incorporeal hereditaments (statute of uses 1535, BNA Act, Settled Land Act, LOP, Trustee Act, Settled Estates Act, Statute westminster 1932).
Government with only a grant of Statue of uses 1535 removes the Common law monarchy, and appoints a constitutional monarchy in 1688.(all created after 1688 BNA Act, Settled Land Act, LOP, Trustee Act, Settled Estates Act, Statute westminster 1932)
Monarchy grants equitable use to lands BNA Act 1867. (government takes assumed ownership of lands in breach of BNA Act), the governments have no constitution and no powers granted to have such power.
Mercer v. Attorney General for Ontario, 1881 CanLII 6 (SCC)
http://www.canlii.org/en/ca/scc/doc/188 ... pletePos=1
The sovereign chosen by society holds the land in trust for the people, as a fidei commissum.
fidei commissum is also known as cestuique trust as the “beneficiary”.
Blacks law 9th edition : fideicommissum: from brevity, the fideicommissum will here be called “the trust”, the person upon whom it was imposed (fiduciarius) 'the trustee', and the person in whose favor it was imposed (fideicommissarius) the “beneficiary”.
Fideicommissarius: See Cestuequi Trust.
Cestuequi Trust: One who possesses equitable rights in property.
Cestque vie: The person whose life measures the duration of trust,gift,estate, or insurance contract.
1881 SCC 6, 5 SCR 538 -Mercer v. Attorney General for Ontario
(701-2)…It was admitted by the learned counsel who represented the provinces in the argument before us, that this was true with respect to all matters of legislation, but it was contented that when the Act (Const. 1867) deals with “property” the rule was inverted and that the provinces take “all property” not by the Act in precise terms given to the Dominion.
The sole foundation for this contention appears to me to be based upon an assumption which in my judgment is altogether ERRONEOUS, namely, that the BNA Act, transfers as it were the legal estate in the Crown property from the Crown and vests it in the Dominion and the provinces respectively as corporations capable of holding property, real and personal, to them, their successors and assigns forever, BUT THE ACT CONTEMPLATES NO SUCH THING;
The new constitutional monarchy in conjunction with the UK government (as required by the new law, “appointed by govt with only a use for a fee and no power at all”) created, bill of rghts, act of settlements, Settled Land Act, Law of property, trustee act and settled estates act and in 1925 consolidated all these acts.
Statute westminster 1932 grants the rest of the powers required for governments to create a constitution, based on the rules of the monarchy statutes (common law).
1982 governments create constitution, constituting the trust from the monarchy.
Now governments can create law only for their subject and only under a trust of land as the common law act state and can never circumvent this fact.
If one takes time to look at what was granted by these different grants (why the test to trust law was posted), the lands have been the only thing granted, yet the people by choosing the newly created jurisdiction has ratified joining the new jurisdiction, based on the kings title, prerogative etc.
This may still seem hard to understand, yet if we look to the jurisprudence to the settled land act and settled estates act we start to get a real understanding of what English common law is vs what equity is in its most natural form and that is making common law tyranny into a trust.
The forgotten statute commentary from canlii will shed light on what is common law, how common law is implied, and many other interesting aspects i dont think many can see that is contained in the Enlgish law and equity.
Unsettled Estates: Manitoba's Forgotten Statute and the Chupryk Case
https://commentary.canlii.org/w/canlii/ ... cs240.pdf
The short note which follows, then, is designed to show how the Manitoba Court of Appeal, in the case of Chupryk v Haykowski, misrepresented the Manitoba law of settled estates by ignoring or suppressing the existence of the English Settled Estates Act of 1856 as part of this province’s law; and how, in so doing, they obliquely sought to justify a unique, and I believe a misguided interpretation of another provincial statute – the partition-and-sale provisions of the Law of Property Act – to achieve the Court’s preferred outcome in the Chupryk case.
What in fact the Court of Appeal did was to turn the absence of the 1882 legislation in Manitoba into a more sweeping assertion – that “Manitoba has no Settled Lands10 Act” – and present that assertion in such a way as to imply that Manitoba was in some way uniquely disadvantaged by this lacuna in its statute-book. It is my position in this paper that any such assertions are demonstrably wrong.
IV.
When O’Sullivan JA states, in the above-quoted passage, that “Manitoba has no Settled Lands Act,” his words are literally true. Manitoba has never had a statute of that name. Nor has any other Canadian province, so far as I am aware. The English statutes bearing that title – both the Settled Land Act of 1882, and the climactic Settled Land Act of 192511 – have been the object of sometimes wistful academic commentary in Canada, but have never been fully adopted in any Canadian jurisdiction. As Professor Waters put it, “The Settled Land Acts of 1882 and 1925 in England never came to Canada.”12 So Manitoba is hardly unique in not having a statute by that name. However, O’Sullivan JA’s assertion, in the same sentence, that Ontario and British Columbia “have enacted Settled Lands Acts” throws some light on what he is really trying to say. So do his perceptions, expressed in that same paragraph, as to what a proper “Settled Land Act” does, what its functions are. It seems that when O’Sullivan JA refers to “Settled Land” legislation, he is using the expression in a loose or generic sense, rather than as a more meticulously historic (or more pedantic) commentator might do. He is, it seems, using the “Settled Land Act” label to embrace a whole procession of
enactments, including not only the statutes which from 1882 onwards bore that name in England, but the procession of more modest enactments which proceeded and heralded them, and bore the name “Settled Estates Acts.”
A different, but less disturbing criticism that might be leveled at his analysis is simply that in its “lumping together” of Settled Estates Acts and Settled Land Acts, it conceals more than it reveals. For purists, as they might term themselves, would certainly insist that despite their superficial similarities of name and function, there is a gulf between them in terms of the social and political theory which underlies them. This is not the place to examine the political struggle which attended the introduction of the first Settled Land Act in 1882, but it was regarded at the time as little short of revolutionary.
I propose in my third and last article in this series, in a forthcoming volume of the journal, to revive and re-examine the social exigencies which gave rise to the debate, and its influence on the law’s entire conception of what “ownership” of land means, and should mean, in the context of limited estate-holding. It seems to me that the arguments then in play may be of interest again in light of the new era of real property law
The Act of 1882 differs from all previous legislation in regard to settled land. It proceeds on different lines, and it has a different object in view. The Settled Estates Acts did not confer or enable the Court to confer on a limited owner powers beyond those ordinarily inserted in a well-drawn settlement. They were no doubt very useful Acts in their way. An application to the Court at a moderate cost was made to serve the purposes of a private estate Act. But the Settled Land Act was founded upon a broader policy and has a larger scope. A period of agricultural depression, which shewed no sign of abatement, had given rise to a popular outcry against settlements. The problem was how to relieve settled land from the mischief which strict settlements undoubtedly did in some cases produce, without doing away altogether with the power of bringing land into settlement. That was something very different from the task to which Parliament addressed itself in framing the Settled Estates Acts. In those Acts the Legislature did not look beyond the interests of the persons entitled under the settlement. In the Settled Land Act the paramount object of the Legislature was the well-being of settled land. The interests of the persons entitled under the settlement are protected by the Act as far as it was possible to protect them. They must be duly considered by the trustees or by the Court whenever the trustees or the Court may be called upon to act. But it is evident I think that the Legislature did not intend that the main purpose of the Act should be frustrated by too nice a regard for those interests. 16
or Manitoba has had, since the date of its enactment; still had in 1980 when Chupryk was decided, and I believe has still (for what it is worth), the Settled Estates Act, 1856.17 We shall consider it presently.
without alluding to the fact that the two statutes in question bore the respective titles of “the Settled Estates Act19 and “the Land (Settled Estate) Act”.20 In the same breath, O’Sullivan JA then muses “But Manitoba has no Settled Lands Act.” Not only is this wrong, if we accord to that label the inclusive meaning which the learned judge himself accords to it; but it created a false impression by inference,21 that unlike other, happier and more progressive jurisdictions, that there is (or was) in Manitoba a total void, just where a Manitoba Settled Lands Act ought to be.
An effort will now be made to give a more accurate picture of the statute law governing settled estates in Manitoba, as it stood at the time of the Chupryk case. Let me begin by introducing that most neglected of statutes, the Settled Estates Act of 1856.
The 1856 act is of great importance to this paper in a way in which its more elaborate and ambitious successors are not. It requires our attention precisely because it was at all times since its enactment, at all times material to our present inquiry – notably when Chupryk was before the courts – and in my view still is, part of the law of Manitoba, as well as that of some other provinces.33 Let me now justify these assertions.
I would contend first that the 1856 Act is part of Manitoba law by reason of the fundamental rules governing the reception of English statutes in the settled colonies. Those rules as laid out by Blackstone, were explained and applied by the Manitoba Court of Appeal itself in Meanwell v Meanwell in 1941,34 but the fullest and clearest analysis of the doctrine of reception, both as to statute and judge-made law is surely that of Mr. Jean Côté, as he then was, in his justly-famous articles in the Alberta Law Review, in 1964 and 1977 respectively
Noting that the 1856 Act has nonetheless never been welcomed into the limelight in Manitoba by any judicial utterance, favourable or otherwise, should we be dismayed or surprised that it has survived so long in the shade? Professor Bruce Ziff, in his valuable textbook,45 seems to find it an embarrassing survival,
As for the content of the 1856 Act, Professor Ziff’s criticisms could be appropriately directed not at those who conceived and drafted the statute, but at the generations of legislatures who totally failed in the ensuing century or more to update and expand the range of transactions which it enabled. The embattled life tenant of 1856, denied powers of sale or leasing by his unimaginative or spiteful settlor, would not have regarded the conferral of such powers by statute, and the removal of the need to seek a private Act of Parliament,47 as “emaciated” or “worthless” reforms. If they have become so – and they have – it is because the 1856 Act has been long since overtaken by events, which have made it redundant. For better or worse, I would merely assert again that it is still there, as part of the law of Manitoba,48 of Saskatchewan and of Alberta too
But redundant it undoubtedly is. Until 1983 when, as explained below, all life tenants were made willy-nilly the beneficiaries (and usually also the trustees) of a legislatively imposed trust,49 the 1856 Act might be of use when a life tenant under a common law settlement felt the need to make a sale or lease of the fee simple. That would not be often, since express settlements are not commonly created these days, and when they do occur, are usually effected under a trust; which brings into play the extensive facilities for Court-approved dispositions of all kinds, afforded in Manitoba by the Trustee Act, s 58(1).50
Prescriptions extinctive vs acquisitive
Re Alfrey Investments Ltd. and Shefsky Developments Ltd. et al., 1974 CanLII 709 (ON SC)
Extinguishment of Owner's Title. A person in possession of land in the assumed character of owner, and exercising possibly the ordinary rights of ownership, has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of The Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title. The Statute of Limitations is a law of extinctive, not of acquisitive prescription. It operates to bar the owner out of possession, not to confer title on the trespasser or disseisor in possession.
is a law of extinctive, not of acquisitive prescription is the same as . It operates to bar the owner out of possession, not to confer title on the trespasser or disseisor in possession.
prescription is the grant to the monarchy,
possession is the law of property, based on the common law land tenure, based from the prescriptions
extinctive is in fee (statute of uses), acquisitive is absolute (free agent).
***Links to source in first post***
Land (Settled Estates) Act
By following the reforms and repeals also explains the history and authority, yet only up till the last reform, then must keep looking to these reforms all the way to the common law grant the governments can not change, yet can make equity whatever they want……...
LAW REFORM COMMISSION OF BRITISH COLUMBIA
REPORT ON THELAND (SETTLED ESTATE) ACT
http://www.bcli.org/sites/default/files ... te_Act.pdf
Trustee act
A Modern Trustee Act for British Columbia
A Report prepared for the British Columbia Law Institute by its Committee on the Modernization of the Trustee Act
http://www.bcli.org/sites/default/files ... eeAct.pdf
A. Trusts Generally
Few legal concepts pervade as wide a range of common dealings as that of the trust.
Trust principles are commonly in play when an employee pays into a pension fund, when a
person makes a will that is anything other than of the simplest kind, and in a sale of land
pending actual transfer into the purchaser’s name. These are only a very few examples.
At the root of the trust concept is the idea that segregated property is held by one or
more persons (trustees) for the benefit of one or more others (beneficiaries). A trust is the
relationship between a trustee and the beneficiary, characterized by an obligation on the part
of the trustee, which the beneficiary may enforce, to deal with property in the trustee’s
control for the benefit of the beneficiary.1 A trust is established when an owner of property
(called the settlor2) makes a disposition of property to a trustee on terms describing how the
trustee is to administer the property to confer the benefits that the settlor intends. As an
alternative to parting with the legal title, the settlor may declare that henceforth he or she
holds the property in trust for the beneficiary. In either case, an alienation of property occurs
because the beneficial ownership of the property is considered to be transferred to the
beneficiary.
B. Trustee Legislation
1. General
The law of trusts is primarily found in cases, but it is partly statutory. Statute law
relating to trusts is mainly concerned with the administration of trusts rather than with the
relationships between settlors, trustees, and beneficiaries. In British Columbia, the principal
statute concerned with trust law is the Trustee Act.3 Like its counterparts in other provinces
and territories, it is largely a re-enactment of English trustee legislation passed at various
times in the nineteenth century.4
2. Historic Purposes of Trustee Legislation
One purpose of the nineteenth-century English legislation was to provide machinery to
allow proper administration of trusts with a minimum of court involvement in cases where
trustees had not been given adequate administrative powers at the time the trust was created.5
It therefore took the form of enabling legislation, conferring basic administrative powers on
all trustees, executors, and administrators.
An important feature of trustee legislation was that its enabling provisions conferring
powers on trustees did not override the express terms of a trust, will, or codicil. A settlor
could exclude statutory powers by using express language. In other words, trustees were
deemed by law to have the statutory powers unless the express terms of the trust stated
otherwise.
Another purpose of trustee legislation was to give the court effective powers to deal with
situations in which a trust had ceased to operate effectively and to define the court’s power
to assist trustees when necessary.6 Among the specific powers given to the court by the
legislation were the power to appoint and remove trustees, to vest trust property in others
when a trusteewas incapacitated or otherwise unable to act, and to authorize the distribution
of trust property among known beneficiaries, with or without ordering the trustee to pay a
portion of the trust fund into court for the benefit of untraceable beneficiaries. The court was
also empowered to give its opinion in non-litigious circumstances on a specific question
6. Trusts arising by operation of law
Trusts arising by operation of law, or that are declared by a court to exist (constructive
trusts), are chiefly remedial in nature. They generally do not require the full administrative
machinery of an express trust in order to fulfil their function. For example, it would not be
desirable to equip a resulting or constructive trustee with powers to delegate authority to an
agent or invest the trust property when the function of the trust is to confirm that the property
is not the trustee’s own and to expedite its transfer to the rightful owner.
Therefore, the
Committee believes a new Trustee Act should not apply generally to resulting trusts, nor to
constructive or similar trusts arising by operation of law or through a judgment or order of
a court.31
G. Conclusion
The Trustee Act has been allowed to stagnate. Revision of this nineteenth-century
legislation is overdue by many decades. The original purposes of the Act, namely to
supplement the general law of trusts, confer necessary administrative powers on trustees
where they are lacking, and guide the court in the exercise of its supportive and supervisory
jurisdiction over trusts and trustees, nevertheless retain their validity and importance.
As you will see, equity is the trust, all those subject as citizens are life tenants that have agreed and are bound to the Law of Property and the Settled Land Act and will be held to that agreement first, since equity takes priority.
Now back to the questions, I wonder at what point an answer will be possible?
What happens if you as life tenant get a notice from one claiming to be settlor to the Settled Land Act 1925 as required by that act,
(For the sake of holding a type of moot situation all the information in the notice is correct as required by the settled land act,)
Do you (as citizens) comply with the notice to transfer the required legal estate as required by s.16(1)(ii), or would you refuse and neglect those duties based on your belief without looking to the Settled Land Act 1925 ?
if you as citizen with legal title try to sell (anything) to a settlor for valuable consideration, is this type of conveyance a legal conveyance or considered fraudulent conveyance within the fraudulent conveyance of English law and equity?
in other words can the citizen sell to a settlor (or anyone not within English law) as a valuable consideration that transfers the right of absolute ownership and possession (droit droit)?
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