Small v. Thompson

Small v. Thompson

Because the grantee (Mrs. Thompson) accepted and enjoyed the property under the deed and did not disclaim or take steps to free herself from the burden of the title, she is to be treated as having assented to the deed and is bound by the covenant to assume and pay the mortgage; the covenant was assignable and the assignee can enforce it against her separate estate.

Citation
(1897) 28 SCR 219
Parties
Plaintiff/appellant: Catherine Frances Small; Defendant/respondent: Mary Callendar Thompson; Defendant/assignor: Robert Cameron Sinclair
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
9 December 1897
Procedural Posture
Appeal From the Court of Appeal for Ontario to the Supreme Court of Canada / On Appeal; Final Judgment
Outcome
Appeal allowed with costs; trial judgment reinstated
Legal Topics
Mortgage, Married Women's Separate Estate, Implied Covenant, Parol Evidence, Assignment of Chose in Action, Assent by Taking Benefit
Source Language
English
Property Law Equity Family Law Mortgage Married Women's Separate Estate Implied Covenant Parol Evidence Assignment of Chose in Action +1 more

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Parties

Catherine Frances Small

Plaintiff/appellant

Mary Callendar Thompson

Defendant/respondent

Robert Cameron Sinclair

Defendant/assignor

Procedural Posture

Appeal From the Court of Appeal for Ontario to the Supreme Court of Canada / On Appeal; Final Judgment

Legal Issues

  1. 1 Whether a married woman who did not sign a deed containing a covenant is bound by that covenant against her separate estate
  2. 2 Whether parol evidence was admissible to contradict or reform the deed
  3. 3 Whether an assignee of the covenant can enforce it against the grantee’s separate estate

Ratio Decidendi

Because the grantee (Mrs. Thompson) accepted and enjoyed the property under the deed and did not disclaim or take steps to free herself from the burden of the title, she is to be treated as having assented to the deed and is bound by the covenant to assume and pay the mortgage; the covenant was assignable and the assignee can enforce it against her separate estate.

Court Disposition

Appeal allowed with costs; trial judgment reinstated

Orders

  • Appeal allowed with costs
  • Judgment ordering plaintiff to recover $4,891.96 out of the separate property of Mary Callendar Thompson is reinstated