Meisner v. Nova Scotia (Attorney General)

Meisner v. Nova Scotia (Attorney General) Court Court of Appeal Date 1993-09-27 Citation 1993 NSCA 161 Docket CA 02750 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 02750 NOVA SCOTIA COURT OF APPEAL Chipman, Freeman and Roscoe, JJ.A. Cite as: Meisner v. Nova Scotia (Attorney General), 1993 NSCA 161 B E T W E E N: GARY MEISNER and CHERYL MEISNER ) Bruce J. Preeper, Q.C., ) for appellants appellants ) ) - and - ) ) THE ATTORNEY GENERAL OF THE ) Samuel R. Lamey and PROVINCE OF NOVA SCOTIA and ) Derrick G. Wickstrom GEORG NEMESKERI ) for the respondents respondents ) ) ) ) Appeal Heard: ) September 27, l993 ) ) ) Judgment Delivered: ) September 27, l993 ) ) ) ) THE COURT: Appeal dismissed with costs per reasons for judgment delivered orally by Freeman, J.A.; Chipman and Roscoe, JJ.A. concurring. The reasons for the judgment of the court were delivered orally by: FREEMAN, J.A.: This is an appeal from a decision granting a certificate of title under The Quieting Titles Act, R.S.N.S. 1989, c. 382 to the respondent Georg Nemeskeri, to certain lands at East River, Lunenburg County. There are three lots totalling 79 acres. The lands are part of a Crown grant issued to George and David Moland in 1885. George Moland died in 1897, leaving no descendants. David Moland died in 1901. Benia and Omri Moland were two of his five children On a railway plan of the lands recorded in 1903 they are shown as owners of the land. The lands were occupied as woodlands. There is a break in the chain of title as recorded between 1896 and 1922 when Benia Moland and his wife conveyed an undivided one half part of the lands to Omri Moland. Benia Moland and his wife conveyed a half interest to Kenneth Moland in 1923. Omri Moland and his wife, Ellen, conveyed their half interest in the property to Kenneth Moland in 1926. In 1930 Kenneth Moland and his wife conveyed the property to Caroline and Eleanor O'Donnaghue by warranty deed. This is the route of the Georg Nemeskeri title. There is no evidence that any other children of George and David Moland had made any claim to these lands. The trial judge found that if they had any interest, they were constructively dispossessed by Kenneth Moland's deed to the O'Donnaghues. Time began running against them in 1930. In 1990 the appellant Gary Meisner recorded four quit claim deeds to the property from the heirs at law of David Moland. At best, these deeds could only convey a very small interest in the property. In June of 1990 the appellant acquired a property adjoining Lot No.1 of the Nemeskeri land from Bowater Mersey Paper Company. By virtue of these deeds, the appellant filed a defence to the Nemeskeri claim alleging that he had an undivided interest in the lands in issue and disputed the location of the southern boundary between Lot No.1 and the appellants' land. The trial judge found that the respondent Nemeskeri had established a good chain of title extending over forty years and this was sufficient to bar any other claimant under Section 20 of the Limitations of Actions Act, R.S.N.S., c. 168, which provides as follows: " No entry, distress or action shall be made or brought by any person who, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent, first accrued, was under any of the disabilities mentioned in the next preceding Section, or by any person claiming through him, but within forty years next after the time at which such right first accrued although the person under disability at such time has remained under one or more of such disabilities during the whole term of such forty years, or although the term of ten years from the time at which he ceased to be under any such disability, or died, has not expired." In his opinion any right in the heirs of David Moland to bring an action expired in 1970, forty years after they were dispossessed by the Kenneth Moland deed. With respect to the boundary dispute he found that the metes and bounds description in the deed from Bowater Mersey was clear and governed the southern boundary to Lot No. 1 as claimed by Nemeskeri. The appellant has appealed from that decision. The first issue relates to the boundary dispute. The trial judge carefully considered the evidence and concluded that the specific description in the deed from Bowater Mersey governed. We agree with that conclusion. The second issue relates to title. On that issue there was no evidence to sustain the appellants' claim. As noted by the trial judge any claim by the heirs of David Moland was barred by the limitation period. Indeed there was no evidence that the parties to the quit claim deeds to the appellant had or claimed any interest in these lands before executing the deeds. In the result the appeal is dismissed with costs, which are fixed at forty per cent of the costs awarded at trial. Freeman, J.A. Concurred in: Chipman, J.A. Roscoe, J.A. C.A. No. 02750 NOVA SCOTIA COURT OF APPEAL B E T W E E N: GARY MEISNER and ) REASONS FOR CHERYL MEISNER ) ) JUDGMENT BY: appellants ) ) FREEMAN, J.A. ) (Orally) - and - ) ) THE ATTORNEY GENERAL OF ) NOVA SCOTIA and GEORG NEMESKERI ) ) respondents ) ) )