This is a more recent case than I have lately written about, and it’s possible that estate law is not as sexy as murder. Fair warning!
Smith v Beals Estate: the facts
The Nova Scotia Court of Appeal recently released its decision in Smith v Beals Estate, 2015 NSCA 93 (CanLII). The appellant (Smith) and the respondents (Lester Beals’ estate and his remaining heirs) all held deeds to parcels of a property in Preston, which was granted to them by Beals. All parties were self-represented.
From reading the trial decision, 2014 NSSC 156 (CanLII), it seems that a group of family members signed a quit claim deed in 1991 which granted their interest in the land to Lester Beals, who they understood “would not really own the land but just be ‘taking care of it'” (para 13). Out of that property, Lester Beals granted parcels of land by deed to half a dozen family members, including the appellant, Smith. Some of those individuals built homes on these pieces of land. His widow, one of the respondents in the appeal decision, testified at trial that Beals’s intention was to look after the land and pay any expenses such as taxes. She testified that he gave deeds “to any family member who asked”.
The appeal
The burden was on Smith to show that this deed created a trust which had not been respected. The court did not find sufficient evidence that the original deed was invalid. In fact, Smith’s claim to his own land relied on the original deed to be valid.
On appeal, Smith wished to introduce fresh evidence about his mother’s interest in the original property. Volda Beals, Smith’s mother, was one of the original grantors of the deed to Lester Beals. Smith sought to argue that his mother did not have a valid interest to grant to Beals in the 1991 deed. Again, that same deed to Beals was the source of his own deed which he and the named respondents received from Beals.
Justice Bryson cited the rather old but very relevant doctrine of equitable election. In short,
[A] person cannot accept and reject the same instrument….
(Lissenden v CAV Bosch Ltd., [1940] AC 412 (HL) at 418, as cited in this case at para 10).
Smith could not rely on Beals’ deed as the source of his own land, while at the same time arguing that Beals’ deed was invalid.
Even if the doctrine of equitable election had not been pulled out of the textbooks to apply to this case, the Court of Appeal wasn’t likely to be of much help to Smith. Self-represented litigants often do not know that an appeal is not a second kick at the can: unless the trial judge committed a palpable and overriding error in finding a fact at trial, the appeal court cannot overturn the original ruling. Mr. Smith’s appeal was dismissed without costs.
Historical context
Preston
Beals is a name with a long history in the Preston area west of Halifax. Preston was settled, then resettled, then resettled again with three different cohorts of black migration around the turn of the 19th century. I am grateful to the Black Loyalists’ Digital Collections website, especially their page on the community of Preston, for providing a helpful summary of the area’s settlement history.
After fighting to support British Colonial forces in the American Revolution, around 3000 Black Loyalists were moved to Nova Scotia. Some received land grants in the Preston area, while others worked as tenant farmers for white landowners.
The Black Loyalist migration to Sierra Leone all but cleared the community. The British deported Maroons to be resettled in Nova Scotia in an attempt to quell conflict in Jamaica. But soon they too would be sent to Sierra Leone.
Finally, the British enticed American slaves to Canada with the promise of freedom during the War of 1812. Many came to Nova Scotia, and Preston was again chosen as a designated site for black migration. Many descendants of this final wave of settlement remain in Preston today.
None of these waves of black settlement can be seen as immigration involving free agency and choice. Where black people were not specifically planted here by British attempts at controlling conflicts in other parts of the world, those who fled to Canada for freedom had little choice in where they ended up settling.
The land made available to African Nova Scotians has always been scant in both quantity and quality; for example, land granted in the Preston area to an African Nova Scotian family would have been smaller and tougher to farm than the land granted in the Fall River area to my Miller ancestors.
(I am not citing sources for this information because I have known it to be true since sixth grade Social Studies. I’m sure conscientious readers will forgive my lack of academic rigour.)
Equity
The English-speaking provinces of Canada derive their legal system from English common law. As the common law developed over the medieval period in England, a distinction between “courts of law” and “courts of equity” appeared, when the Chancery (mostly staffed by clergy) became a kind of court where the King’s subjects could petition for relief from an unfair judgment in a court of common law.
In a situation very similar to that of Smith v Beals Estate, courts of equity in the 15th century could hear cases about trusts in land. Where no formal trust had been created, could a court of equity recognize an equitable trust held by one person for the benefit of his extended family? Could a court of equity permit a deed holder to challenge the validity of an older deed which happened to be the source of his own title as well?
Equity did things differently than the rigid law courts in an attempt to reach fair results. For example, “uses” recognized a new form of title: one person could hold legal title in a piece of land, for the use of another person or persons who had equitable title (the right to use it).
Equity also formed the doctrine of election, again as cited by Bryson JA:
Under the doctrine of election, a person may not consciously and unequivocally exercise a right that is inconsistent with another right. To establish an election in equity, it is unnecessary to show that the electing party made a conscious choice between inconsistent rights at the time the original decision was made; an equitable election does not involve a choice but accepting the consequences of a decision already made.
Halsbury’s Laws of Canada – Equitable Remedies (Markham, Ont: LexisNexis, 2012) at para HER-19 “Nature of Election”.
Equity steps in to reduce the proof that must be shown to prove an “election” or choice. We don’t need Smith’s testimony or other evidence to prove that he has chosen to rely on the validity of the 1991 deed. The fact that he accepts the consequences of that deed, by accepting title derived from it, is sufficient.
Equity or “equity”?
It was with this context in mind that I read Smith v Beals Estate. In 1991, a family came together to grant their individual property interests to Lester Beals. They seem to have done this to avoid it falling out of their hands, having to be sold. This is a scenario my ancestors likely would never have had to consider. We have always had the benefit of property and estate laws and settlement initiatives which have favoured white people since Europeans first set foot in North America.
Smith v Beals Estate may seem like a confusing family dispute over deeds. Maybe that’s all it is. But it got me thinking about privilege, equity, and the ripple effects of history in law.
