Kearney v. Creelman, (1886) 14 SCR 33

Supreme Court of Canada

Kearney v. Creelman (1886) 14 SCR 33

Date: 1886-02-17

Maria Kearney (Plaintiff)

Appellant

And

The Hon. Samuel Creelman and Alexander P. Reid (Defendants)

Respondents

1886: Feb. 17.

Present—Sir W. J. Ritchie C. J. and Strong, Fournier, Henry, Taschereau and Gwynne JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Will—Devisee under—Mortgage by testator—Foreclosure of—Suit to sell real estate for payment of debts—Decree under—Conveyance by purchaser at sale under decree—Assignment of mort gage—Statute confirming title.

A. M. died in 1838 and by his will left certain real estate to his wife, M. M., for her life, and after her death to their children. At the time of his death there were two small mortgages on the said real estate to one H. P. T. which were subsequently foreclosed, but no sale was made under the decree in such foreclosure suit.

[Page 34]

In 1841 the mortgages and the interest of the mortgagee in the foreclosure suit were assigned to one J. B. U. who, in 1849, assigned and released the same to M. M.

In 1841 M. M., the administrator with the will annexed of the said A. M., fyled a bill in Chancery under the Imperial Statute 5 Geo. 2 ch. 7, for the purpose of having this real estate sold to pay the debts of the estate, she having previously applied to the Governor in Council, under a statute of the Province, for leave to sell the same, which was refused. A decree was made in this suit and the lands sold, the said M. M. becoming the purchaser. She afterwards conveyed said lands to the Commissioners of the Lunatic Asylum, and the title therein passed, by various acts of the Legislature of Nova Scotia, to the present defendants.

M. K., devisee under the will of A. M., brought an action of ejectment for the recovery of the said lands, and in the course of the trial contended that the sale under the decree in the. Chancery suit was void, inasmuch as the only way in which land of a deceased person can be sold in Nova Scotia is by petition to the Governor in Council. The validity of the mortgages and of the proceedings in the foreclosure sale were also attacked. The action was tried before a judge without a jury and a verdict was found for the defendants, which verdict the Supreme Court of Nova Scotia refused to disturb. On appeal to the Supreme Court of Canada: —

Held, affirming the judgment of the court below, that even if the sale under the decree in the Chancery suit was invalid, the title to the land would be outstanding in the mortgagee or those claiming under her, the assignment of the mortgages being merely a release of the debts and not passing the real estate, and the plaintiff, therefore, could not recover in an action of ejectment.

Semble, that such sale was not invalid but passed a good title, the Statute 5 Geo. 2 ch. 7 being in force in the province. Henry J. dubitante.

Held, also, that the statute cap. 36 sec. 47 R. S. 4th series (N. S.) vested the said land in the defendants if they had not a title to the same before. Henry J. dubitante.

Appeal from a decision of the Supreme Court of Nova Scotia[1] sustaining a verdict in favor of the defendants.

The material facts of the case are sufficiently set out in the above head-note.

T. J. Wallace for the appellants.

McLennan Q.C. and Graham Q.C. for the respondents.

[Page 35]

Sir W.J. RITCHIE C.J.—I can see no difficulty in this case. It is clear that there was a decree made by the Court of Chancery foreclosing the mortgage, and that the court decreed a sale of this property; it is clear that the sale was made professing to be a sale under the decree passed for the purpose of settling the estate and making this land available for payment of the mortgage. The sale was made and the property duly conveyed by the master's deed. After the property was so conveyed, that closed the transaction as to the devisor and those claiming under him.

The transfer to Mrs. McMinn from Uniacke was evidently for the purpose of preventing this mortgage from being, as it were, a blot upon the title.

After this property was conveyed to Mrs McMinn she conveyed to the Commissioners of the Lunatic Asylum, and by various acts of the legislature it passed to the board of works and then to the Commissioners of Public Works and Mines; and, in the course of legislation which took place, the title to this land was declared, not only to be confirmed in them, but vested in them in fee simple, so that the defendants now hold by a statutory title. But assuming this was not so, as pointed out in the argument, the ground on which the court below proceeded must prevail, for if the title was not in Mary McMinn when she conveyed to the Commissioners of the Lunatic Asylum it must be in Henrietta Phoebe Tremain or those claiming under her and so the plaintiff failed to show any title to the locus in quo to enable her to recover in this action of ejectment.

The appeal must be dismissed with costs.

STRONG J.—It is clear that there is no foundation for this appeal. The plaintiff makes out a primâ facie case by proving that Andrew McMinn was, at the time of his death, in possession of this land, which is presumptive

[Page 36]

evidence of his seizin in fee, and by further proving the will of Andrew McMinn by which this property, subject to the widow's life estate, was devised to the plaintiff in fee. But this primâ facie case is met by the defendants as follows. It is proved that the legal estate passed to the mortgagee, Miss Tremaine, and it never passed out of her unless the master's deed was operative, for the deed of the 16th October, 1841, whereby the mortgagee Miss Tremaine, transferred the mortgages to James Boyle Uniacke, did not pass any estate in the land, being, apparently, merely intended as a release or extinguishment of the mortgage debt, and therefore, if the deed executed by the master (by which he assumed to convey the land to Mary McMinn as having been sold under the decree in the administration suit) is inoperative, the legal estate is still outstanding in the real representatives of the mortgagee. If, on the other hand, the sale was valid and effectual, then it is equally clear that the legal estate is not in the plaintiff, but in the defendants under the conveyance by master Nutting to Mary McMinn dated the 31st December 1842, made pursuant to the decree in the administration suit, and her subsequent conveyance of the 20th July 1853 to the Commissioners for the Asylum. Therefore, "quacunque via datâ," the legal estate is shown not to be in the plaintiff, who cannot therefore recover in ejectment; for, whatever rights she might have in a court of equity, no effect can be given to them in this action. I should add, however, that I have no doubt the sale under the decree was perfectly good; the Imperial statute 6 Geo. 2 cap. 7 authorises the sale of lands in equity for the payment of debts in all British colonies; no statute is shown to have been passed in Nova Scotia whereby the law so enacted was in any way altered: the sale having been regularly made, the master had power to convey the legal estate

[Page 37]

in the lands sold under the decree, for such power is expressly conferred upon a master in equity by the statute 3-4 W. 4 cap. 52 sec 8.

Further, the statute of 1874 is alone a sufficient defence to this ejectment, for it expressly vests the estate in the lands sought to be recovered in the defendants, in fee simple.

The appeal should be dismissed with costs.

FOURNIER J.—Concurred.

HENRY J.—The plaintiff having made a primâ facie case the difficulties are in connection with the defence.

The property in question was, at the time of the death of Andrew McMinn the testator who was the husband of Mary McMinn and father of the plaintiff, encumbered by two mortgages to Miss Tremaine; she subsequently assigned them to James Boyle Uniacke and he assigned them to Mary McMinn. I am of the opinion that thereby the legal estate passed to Mary McMinn. She then, in ray opinion, took the title as a tenant for life under the will. There was, however, a decree of foreclosure made at the instance of the mortgagee, but no sale was made under it, and Mary McMinn became entitled, under the assignment from Uniacke, to the benefit of the decree, but never acted on it.

The property was, however, finally sold for the payment of debts under the provisions of the Imperial Statute 5 Geo. 2 cap. 7. It is contended that, inasmuch as the Legislature of Nova Scotia had passed an act which rendered it necessary to the valid sale of lands of a deceased person that an order for the same should be obtained from the Governor in Council, the Imperial statute ceased to have operation in Nova Scotia, and that an application for that purpose having been refused by the Governor in. Council the decree for the

[Page 38]

sale made by the Court of Chancery was invalid. I am rather inclined to sustain the contention, but as the rest of the court take a different view I need give no decided opinion as to it. If, however, that contention can be sustained, then I am of opinion that, apart from the purchase by Mary McMinn at the sale by the master and the conveyance by him to her, she held as a tenant for life under the will. If not, then the plaintiff cannot succeed in an action at law, but might possibly succeed in a court of equity, and obtain a declaration of that court that Mary McMinn, under the peculiar circumstances, took as a tenant for life. As the rest of the court are of opinion that the statute passed by the Legislature of Nova Scotia in 1874 vests the title of the lands in question in the defendants in fee simple, any discussion of the question would be of no practical use, but I cannot arrive at the conclusion that an act of that kind can have the effect of transferring title from one party to another, and the act should be construed as intended only to transfer the title, such as it was, from one public body to another, or rather from one body of trustees to another. The appeal, however, will be dismissed, although, in my opinion, it should be allowed.

TASCHEREAU J.—Was of opinion that the appeal should be dismissed.

GWYNNE J.—To my mind this case is quite clear. The sale under the decree for the administration of the estate of McMinn appears to me to have been quite good. Then the statutes vest the land in the Commissioner of Works. But if there were anything defective in these proceedings, the mortgage would remain with a decree of foreclosure thereof made which is enrolled and unreversed. The contention that Mrs. McMinn took, as tenant for life, a release of the mortgage,

[Page 39]

which extinguishes the mortgage and brings in again her tenancy for life and the estate in remainder, is fallacious, for the release was made to her, not as tenant for life nor while that tenancy existed, but after it had become extinguished by the sale in the administration suit, and to her as and when tenant in fee simple in virtue of that sale.

The present plaintiff has clearly no legal estate whatever in the premises to recover which the suit is brought, and the appeal must be dismissed.

Appeal dismissed with costs.

Solicitor for appellant: Thomas J. Wallace.

Solicitors for respondents: Graham, Tupper, Borden & Parker.

(NOTE)—In this case application was made to the Judicial Committee of the Privy Council for leave to appeal from the decision of this court, which leave was refused.