be referred to as
L
question, and that the
lants, on the other hand, co
a person who will be hereafter referrea ♥~ that the legal estate passer to the nephew.
iereiz
person in e appel-
estion is nephew," and
There can be no doubt that parole evidence as to the identity of a party to a deed is always admissible, but in considering such evidence it is of paramount importance to bear in mind the indicia of identity afforded by the deed itself. In the present case these indicia are as follows; the person to be looked for is a person who-(1) is named Tong Shun; (2) resides at Victoria in the colony of Hong Kong; (3) is a trader; (4) has paid the vendor 26,500 dollars; and (5) enters into a covenant with the vendor by signing, sealing, and delivering the indenture itself. The uncle's Chinese name may properly be rendered in English as Tong Shun and he may, no doubt, he properly described as a trader. He also seems to have provided the 26,500 dollars paid to the vendor. But he was not resident in Hong Kong when the indenture was executed. On the contrary, he resided at Chicago his only connection with long Kong being that he was or had been a partner in certain businesses carried on in the colony. He certainly did not either personally or by a properly constituted attorney sign, seal, or deliver the indenture, or thereby enter into any covenant with the vendor. The nephew, on the other hand, has a Chinese name which may properly be rendered in English as Tong Shun; he resides in Victoria in that colony; he is a trader; he paid the 26,500 dollars, though out of money provided by the uncle; he personally signed, sealed, and delivered the indenture and he is the only person who could possibly be sued by the vendor on the covenant, on the part of the purchaser therein contained.
The facts above stated taken alone would, in their Lord- in person ships' opinion, establish beyond controversy that the the indenture described as the purchaser was the nephew and not the uncle, but there is one additional fact which has not yet been stated, and which is said to outweigh the other evidence, or at least to create such an ambiguity as to admit evidence of intention. As hereinbefore appears both the uncle and the nephew have Chinese names, which may be properly rendered in English as Toug Shun. To the Chinese ear the names are, however, quite distinct, because their intonation is different. They are also distinct when written in Chinese characters, because these characters indicate tonal marks. It appears that the nephew in signing the indenture made use of the Chinese characters appropriate to his uncle's name and not of those appro- It is said that this alone is sufficient priate to his own name,
[
ruder the u
142
ame which h sents is, but which is not in wave, nis own, nor can be saddle such Hability on the person whose name he uses, unless he is the duly constituted attorney of such person. The nephew was not the duly constituted attorney of the uncle. He is therefore liable ou the covenant, and to argue that while the person who covenants is the nephew, the property passes to the uncle would be to contradict the deed, which clearly indicates that the pro- perty passes to the person who enters into the covenant. Even if the use of the Chinese characters appropriate to the uncle's name can be said to create an ambiguity to elucidate which evidence of intention is admissible, the uncle's position is in no way improved. For it is quite certain that the vendor intended to convey to the nephew whom alone he knew in the trans- action. It is nihil ad rem to say that as long as the vendor got his money he did not care to whom he assigned the property. The nephew was not called as a witness, and his reasons for signing as he did are a matter of surmise, but having regard to the fact that he was about to perpetrate a series of frauds, it is not improbable that he desired to be able to assure the uncle (us he subsequently assured him) that his (the uncle's) name had been used in the transaction while he himself remained in a position to mortgage or otherwise deal with the property.
Their Lordships think that the legal estate undoubtedly passed to the nephew, though inasmuch as the transaction was one entered into on the uncle's behalf and with money provided by him, the nephew held the legal estate in trust for the uncle.
On the 12th November, 1909, the nephew creatud a legal mortgage on the property for 15,000 dollars. This was a fraud upon
the uncle, for the mortgagee could, by virtue of the legal estate, rely on the plea of purchase for value without notice.
On the 24th July, 1913, the nephew created au equitable mortgage on the property for 16,000 dollars. This was a fraud on the equitable mortgagee, whose interest would be postponed
to the prior equitable estate of the uncle.
On the 29th August, 1913, the nephew paid off the legal mortgage of the 12th November, 1909, and took a reconveyance of the legal estate.
On the same 29th August, 1913, the nephew created another legal mortgage on the property for 10,000 dollars. This mortgage was a fraud upon the uncle, over whom the mortgagee took priority by virtue of the legal estate.
On the 11th December, 1913, the nephew paid off the equitable mortgage of the 24th July, 1913, and took a recon- veyance of the mortgagee's interest.
On the 24th December, 1913, the nephew created an equitable mortgage on the property in favour of the appellants
B 2 [141-225)