Bouch v. Bouche

DORAN, J. By stipulation the two appeals herein are presented on the judgment roll. The facts are as follows:

Prior to June, 1917, one Victor Louis Bouch (hereinafter referred" to as Victor Bouch) was the owner of certain real property located in the city of Winnipeg, Canada, described as: “Lot 175 in D.B.S. 84 St. James, plan 681, registered in the Winnipeg Land and Title Office as Certificate No. 273750.” On June 22, 1917, said Victor Bouch delivered a deed of land conveying to Louis Franklin Bouche, his brother (hereinafter referred to as Louis Bouche), an undivided one-half interest in and to said property. The deed so made was neither recorded nor registered in the Winnipeg Land and Title Office.

Some time thereafter, namely, on or about November 1, 1928, said Victor Bouch made, executed and delivered to Louis Bouche an agreement which read as follows:

“Whereas, you are the owner of a half interest in the whole of Lot 175 in D.B.S. 84 St. James, plan 681, registered in the Winnipeg Land Titles Office as Certificate No. 273750 in the name of Victor L. Bouch, together with all buildings and appurtenances thereto, better known as 276-278 Spence Street, Winnipeg, Manitoba, Canada. All free of encumbrances.

“And WHEREAS, it is my desire to facilitate your coming into possession of this interest in cash at the earliest opportunity, I, for that purpose, beg to submit to you for your approval, the following proposition:

“ (1) That we set on the property, a value of $15,000.00, your interest therein being $7,500.00 (Seventy five Hundred Dollars) as at this date, the 1st of November, 1928.

“ (2) That, I pay you as conditions permit, various sums of money in reduction of the said sum of $7500.00 until this principal amount has been reduced to a point where we can obtain and place on the property, a first mortgage loan at Six per cent interest, the proceeds of which to be paid over to you in termination of your interest thereof, with the following proviso:

“ (3) That, in the event of a sale of the property taking place, either before or after the consummation of the terms [88]of Art. 2, and the selling price being in excess of the sum of $15,000.00 hereinbefore set out as a valuation, you are to participate to the extent of one-half, in the difference between the $15,000.00 and the net proceeds of the sale; your share thereof to be paid you first, out of the proceeds of said sale.