HYNDMAN-JONES CJ

I am of opinion that this appeal must be allowed.

We are much indebted to counsel on both sides for the careful and able arguments which they have addressed to us in the course of which argument the case was considered from every point of view.

It appears that the plaintiff obtained judgment against the defendant on the 21st February 1906 for $1,618.97 with costs and that on the 31st May 1906 he issued a writ of execution against lands. That writ was registered in the registry on the 31st May, and in the registry of Deeds on the 1st June certain lands which stood in the defendant's name were attached under the writ; these this brother claimed as being his by virtue of a resulting trust: the Court below has decided against that claim and hence this appeal. There was no question at all but that the lands were really the claimant's, and the learned Judge based his decision against him on three grounds which have been argued at length before us on appeal:-

(1) That a Court which administered Equity would not allow the claimant to set up a resulting trust against the plaintiff (even although he was a creditor with a registered assurance) in view of the fact that the claimant had for some 20 years held out the defendant as being the owner of the lands in question.

(2) That the claimant, not having registered a memorandum of his lien or charge on the lands, was not in a position to assert any right against the plaintiff, and so on the question of priority alone the plaintiff was entitled to succeed.

(3) That a resulting trust cannot be allowed any operation at all so as to defeat the policy of a statute.

The first ground was considered from two points of view, (a) the conduct of the claimant in putting these lands in his brother's name, (b) the conduct of the claimant in allowing them to remain so, in other words his conduct in standing by and allowing people to deal with the defendant as if the lands were his own. As to the conduct of the claimant in putting the lands in his brother's name, the learned Judge considered that he was bound to take notice of the rules for the guidance of public officers, and he, I think, more than suggests that the motive of the claimant was to evade those rules. I do not propose to go into this matter, because, on consideration, I have come to the conclusion that the motive of the claimant, were it the innocent one which he himself assigns or the improper one which the Judge suggests, is immaterial to the question which we have to decide; and I pass on to consider the conduct of the claimant in allowing the lands to remain for these 20 years in his brother's name. The learned Judge held that, in weighing the equities between the plaintiff and the claimant, the doctrine of equity referred to by Lord Cottenham in Mangles v. Dixon [1849] 1 Mac. & G. 437 applied, viz:- that "a party having a secret equity who stands by and permits the apparent owner to deal with others as if he were the absolute owner, and as if there were no such secret equity, shall not be permitted to assert such secret equity against a title founded on such apparent ownership" and he goes on to say later that in this case the claimant has by joining in some of the deeds armed the apparent owner with proof resting on his own declaration that no secret equity existed. As to the latter point there is no evidence whatever to show in what capacity the claimant joined in the deeds; while as to the former there is nothing to show that the plaintiff lent his money to the defendant because he had any knowledge of or belief in his ownership in these lands. In the case of Mangles v. Dixon an agreement was entered into between a merchant and a shipowner for a partnership in a voyage of a ship belonging to the latter, and the agreement was contained in two documents, one a charter party by which one half of the freight was made payable by the merchant to the shipowner by monthly instalments during the voyage and the