Ibottson v. Kushner

Ibottson v. Kushner

The trial judge's finding that the respondent conveyed beneficial title to the appellant to hold in trust pending marriage (with resulting trust reverting to the respondent on failure to marry) was supported by the evidence; the appellant could not raise an unpleaded illegality defence for the first time on appeal because the conveyance was not illegal on its face and the respondent had no notice to adduce evidence on that issue.

Citation
[1978] 2 SCR 858
Parties
Appellant / Defendant: Rose Marie Ibottson; Respondent / Plaintiff: David Edward Kushner
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
7 March 1978
Procedural Posture
Action for Reconveyance of Lands (property Trust) / Appeal to Supreme Court of Canada
Outcome
Appeal dismissed with costs; declaration and reconveyance order upheld in favour of respondent
Legal Topics
Resulting Trust, Cestui Que Trust, Intention of the Parties, Illegality Defence, Pleading and Waiver, Reconveyance
Source Language
English
Property Law Trusts Equity Conveyancing Civil Procedure Resulting Trust Cestui Que Trust Intention of the Parties +3 more

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Parties

Rose Marie Ibottson

Appellant / Defendant

David Edward Kushner

Respondent / Plaintiff

Procedural Posture

Action for Reconveyance of Lands (property Trust) / Appeal to Supreme Court of Canada

Legal Issues

  1. 1 Whether the conveyance to the appellant was intended to create a trust to be held pending marriage
  2. 2 Whether a resulting trust arose in favour of the settlor (respondent) on failure of the marriage
  3. 3 Whether an illegality defence could be raised for the first time on appeal where it was not pleaded or tried

Ratio Decidendi

The trial judge's finding that the respondent conveyed beneficial title to the appellant to hold in trust pending marriage (with resulting trust reverting to the respondent on failure to marry) was supported by the evidence; the appellant could not raise an unpleaded illegality defence for the first time on appeal because the conveyance was not illegal on its face and the respondent had no notice to adduce evidence on that issue.

Court Disposition

Appeal dismissed with costs; declaration and reconveyance order upheld in favour of respondent

Orders

  • Appeal dismissed with costs
  • Declaration that the appellant holds Lot 3, Plan 2, Township of Hillier, County of Prince Edward, in trust for the respondent