MANITOBA. MARCH 3RD, 1911. COURT OF APPEAL. STROME v. CRAIG. Fraud and Misrepresentation-Sale of Farm-Statements of Vendor-" All Fit for Cultivation "-Marshy Land -Evidence-Damages-Findings of Trial Judge-Ap peal. The judgment of PRENDERGAST, J., 15 W. L. R. 197, finding the defendant liable in damages for representations made on the sale of a farm, as to its condition, upon which the plaintiff relied, and which proved to be untrue, was affirmed on appeal. Quare, whether the representation that the land was "all fit for cultivation" could be taken as wide enough to warrant the accessibility of a part of the farm which was cut off by a river. Appeal by the defendant from the judgment of PRENDERGAST, J., 15 W. L. R. 197, in favour of the plaintiff. The appeal was heard by HOWELL, C.J.A., RICHARDS, PERDUE, and CAMERON, JJ.A. J. P. Curran, K.C., for the defendant. J. F. Kilgour, for the plaintiff. The judgment of the Court was delivered by CAMERON, J.A.:-This action arose out of an exchange of properties between the plaintiff and defendant. The former owned a stock in trade of general merchandise at Wolseley, in Saskatchewan, and the defendant a farm (subject to a mortgage) with stock and implements, near Minnedosa, in this province. The parties met in the afternoon of the 3rd February, 1909, in the plaintiff's office in Brandon, and came to an agreement to exchange. The farm with the stock and implements was taken at a valuation of $11,000, the defendant agreeing to give his equity and $6,800 cash for the stock in trade. A transfer of the farm was drawn and signed on the evening of the 3rd February, and a bill of sale of the stock in trade was executed some days later. The same solicitor acted for both parties. The defendant had previously inspected the stock in trade, and had been for some time in occupation of the farm, which the plaintiff had never seen. The plaintiff alleges in his statement of claim that certain misrepresentations with reference to the farm were made to him by the defendant, as follow: "Prior to the said sale and purchase, and in order to induced the plaintiff to entertain the agreement therefor, the defendant falsely and fraudulently represented to the plaintiff: (1) that the said lands were first-class farm lands; (2) all fit for cultivation; (3) and all of good heavy soil, except 40 acres on the north-west corner, which the defendant represented as being somewhat rough, but also as being first-class pasture land; (4) and that, with the exception of wells, there was no water on the said lands. The action came on for trial at Brandon, on the 17th May, 1910, before Mr. Justice Prendergast, who reserved judgment, and on the 8th September, 1910, delivered a written judgment awarding the plaintiff damages, amounting in the aggregate to $552.98. The defendant appeals from this judgment. In respect of representations numbered (1) and (2) the learned Justice found for the defendant. As to representation (3), he construed the phrase "all fit for cultivation" to refer to quality and to accessibility, and, as the Little Saskatchewan river traversed the farm, and a considerable area of the farm was north of the river, while the house and buildings were south of it, he held that that area could not be considered as available for cultivation. With reference to representation (4), the learned Justice found that there is in fact on the farm "the river and the ravine, and at least one well-defined marsh." With respect to (3), he allowed $250 damages, based on the cost of a bridge; and as to (4), he awarded $280. I confess I find myself in a difficulty in giving to the expression "all fit for cultivation" the comprehensive meaning adopted by the trial Judge. Ordinarily speaking, the expression would refer to quality of the soil, and would not be extended to include accessibility. Counsel for the defendant dwelt upon certain findings of the trial Judge as being inconsistent with the facts disclosed by the evidence. The findings that the stock sheets were shewn to the defendant on the 3rd and 4th, and not on the 12th, does not appear to be, strictly speaking, consistent with the evidence. The defendant did not apparently ex amine them on the earlier dates, but he had already inspected the stock. As to Miss Peffer's evidence, being to the effect that it was not at the time of the agreement, but long afterwards, that the parties discussed the location of the river, that, in strictness, does not accord with her evidence at p. 172. Nor, can it be said that there is found in the evidence any specification of a well-defined marsh, as that word is ordinarily used. But these cannot be considered as errors of substance affecting the merits of the transaction. Counsel for the defendant also referred at length to the evidence of the plaintiff as disclosing contradictions, mistakes, and misapprehensions. It must be admitted that the evidence of the plaintiff is in parts unsatisfactory and confusing, while, on the other hand, that of the defendant is clear-cut and apparently straight-forward. Nevertheless, it is the fact that the trial Judge disregarded the latter and gave effect to the former. Moreover, the plaintiff's evidence is, to a considerable degree, corroborated by that of Miss Peffer, and upon her evidence the learned trial Judge placed reliance. Under the circumstances, I cannot see how we can interfere with the view taken by the Judge, who had the advantage of presiding at the trial where these persons were in the witness box before him. While part of the damages awarded ought not, perhaps, in strictness, to be allocated under the misrepresentation that the farm was all fit for cultivation, it seems to me that the fourth representation is sufficiently wide in its terms, as set out in the pleadings, and as it is supported by the evidence, to include this item of $250. As to the other item of $280 and the small item of $22.98, there is no adequate reason presented to us to justify interference with the findings of the trial Judge. The plaintiff has, it appears, on a resale of the farm, made a considerable loss, much greater than the verdict. Upon the whole, I am of opinion that the appeal must be dismissed with costs. MANITOBA. MARCH 3RD, 1911. COURT OF APPEAL. GUNN v. VINEGRATSKY. Assignments and Preferences-Action to Set aside Fraudulent Conveyance or Preference-Parties-Grantor-Action by Judgment Creditors - Assignments Act, secs. 40, 44-Presumption-Action Brought within 60 Days -Evidence of Parties-Rule 460-Effect of-Impeaching Testimony of Defendant when Called by Plaintiff -Insolvency-Knowledge of Solicitor-Presumption Client Affected with Notice-Actual Advance in CashNew Trial. The plaintiffs, were judgment creditors of the defendant V., and had registered their judgment. They brought this action to set aside a conveyance of land by the defendant V. to the defendant C. as a fraudulent conveyance or a fraudulent preference. No. objection was taken to the defendant V., the judgment debtor, being made a party defendant. There was no allegation that the defendant C. was a trustee for the defendant V., and held the land under a secret trust : Held, that the judgment debtor should not have been made a party. Semble, that, apart from the Assignments Act, a simple contract creditor may bring an action against both the debtor and the grantee, asking for judgment against the debtor for the debt, to have the grantee restrained from conveying, and, in the event of judgment being obtained against the debtor, to have the fraudulent conveyance set aside. Longeway v. Mitchell, 17 Gr. 190, and Gibbons v. Darvill, 12 P. R. 478, referred to. By sub-sec. (b) of sec. 48 of the Assignments Act, as it now stands, where there is no assignment, one or more creditors may sue on behalf of all the creditors to set aside a fraudulent conveyance, and the whole matter will be administered in one action : Held, that this does not take away the right which a judgment creditor formerly had; and sub-sec. (d) permits the action to be brought as formerly. Section 40 of the Assignments Act declares that if there is a preference, it " shall, in and with regard to any action or proceeding which within 60 days thereafter is brought, had, or taken to impeach or set aside such transaction, be utterly void as against the creditor or creditors injured, delayed, prejudiced, or postponed:”— Held, that the plaintiffs in this case, having brought this action within 60 days after the execution of the impeached document, were entitled to the full benefit of sec. 40, afthough they did not profess to sue on behalf of other creditors until an amendment was made at the trial, which was after the expiration of the 60 days. The plaintiffs called the defendants as witnesses under the amendment to Rule 460, which provides that this can be done, and the plaintiffs may still contradict the defendants' testimony :— Quare, as to the effect of this kind of evidence and the extent to which the plaintiffs are bound by it. The impeached conveyance was drawn up by a solicitor acting for both of the parties to it: Held, that the grantee was affected with notice of the facts that the grantor was insolvent and that the conveyance covered all his property, such facts being known to the solicitor, although both the solicitor and the grantee swore that the solicitor's knowledge was not divulged. Where it is the duty of a solicitor to divulge a fact as to a title, there is an irrebuttable presumption that he communicated the fact. Rolland v. Hart, L. R. 6 Ch. 678, Real Estate Investment Co. V. Metropolitan Building Society, 3 O. R. 476, and Schwaitz v. Winkler, 13 Man. L. R. 505, followed. Both the defendants swore that the purchase-price was paid partly in cash at the time of the conveyance : Held, that, although the grantee had knowledge of the insolvency and of the grantor's fraudulent intent, if he actually paid the money, the sale must stand. Campbell v. Patterson, 21 S. C. R. 645, followed. Held, however, that, as it was not satisfactorily shewn that any payment was made by a present advance of cash, within sec. 44, and as it was shewn that $250 of the price was not so paid, without deciding whether this made the whole sale void, and especially as $600 of the purchase-price was a debt alleged to be due to the purchaser, there should be a new trial, especially upon the question whether the purchaser was entitled to the benefit of sec. 44 the plaintiffs being entitled to the benefit of sec. 40-and so that the whole matter might be gone into fully. The plaintiffs were judgment creditors of the defendant Vinegratsky, and had a registered judgment. They filed a statement of claim against the judgment debtor and Frank Cohen, alleging a fraudulent preference by way of conveyance of the land therein described. The judgment debtor put in a defence and disclaimed any interest in the land, alleging that it had been purchased by his co-defendant and the full value paid to him, and he denied that he executed the transfer with any fraudulent intent. He did not in any way set up in the defence that he was not a necessary party to the suit, and that point was not taken on the argument. The defendant Cohen set up that, prior to the 28th December, 1909, his co-defendant was the owner of the land, and that on that day he transferred to the answering defendant the lands in fee simple, and the transfer had been duly registered, and he denied all fraud and all intent to assist in any fraudulent conveyance or fraudulent preference, and alleged that he purchased the property for $4,000, subject to a mortgage for $2,300, which he assumed, and that the balance, $1,700, he paid to his co-defendant. He also further alleging that he had no notice or knowledge of the insolvency or alleged insolvency of his co-defendant. The statement of claim was filed on the 1st February, 1910, and, therefore, within 60 days after the execution of the alleged fraudulent conveyance. The case came on for |