Sir W. J. 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 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.
J.-It is clear that there is no foundation for this appeal. The plaintiff makes out a primdfacie case by proving that Andrew McMinn was, at the time of his death, in possession of this land, which is presumptive 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 -n plaintiff in fee. But this primdJacie case is met by sn 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 datd," 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 5 Geo. 2 cap. I 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 [VOL. 11Y. in the lands sold under the decree, for such power is expressly conferred upon a master in equity by the statute 3-1 W. 4 cap. 52 sec. 8.
Further, the statute of 1874 is alone a sufficient defence to this ejectment, for it expressly vests the Strong J. estate in the lands sought to be recovered in the defendants, in fee simple.
The appeal should be dismissed with costs.
J.-Concurred.
J.-The -plaintiff having made a primd 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 my 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 beinefit 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. T. 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 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.
J.-Was of opinion that the appeal should be dismissed.
.- 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, which extinguishes the mortgage and brings 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 adminis- owynne J. tration 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
J. Parker.
GILBERT JONES, WILLIAM VAL- ENTINE,
JOHN
GARRATT,
.N.
- ADAM HENRY GARRATT, JOHN
Nov.17. STANLEY WHITE, WALTER S.
VARNEY, LEVI V. BOWERMAN,
WILLIAM BRANSCOMBE, WIL- I
May LARD
GARRATT, LEVI VAR- NEY,
WALTER
LEAVENS,
NATHANIEL SWEETMAN, A. M.
OUTWATERS, RALPH P. JONES,
AND
AMOS BOWERMAN
(DE- JOHN T. DORLAND, STEPHEN W.
WHITE, ANTHONY T. HAIGHT
AND ANTHONY HAIGHT, CORY
B. CRONK, AND BENNETT BOW- ERMAN (PLAINTIFFS)...................
of for-Authority of
J.
JJ.
VOL. X17.]
Ontario (1); reversing the judgment of Proudfoot J. in the Chancery division (2) in favor of the defendants. The material facts of the case, which are more fully set out in the report in the Chancery Division, are as follows- The plaintiffs are the trustees of the West Lake Monthly Meeting of Friends duly appointed pursuant to R. S. 0. ch 216 and sue on behalf of all the members of the said monthly meeting.
By deed dated the 14th May, 1821, and registered 18th February, 1829, Jonathan Bowerman and John Bull, in consideration of $60, bargained and sold to Jonathan Clark, Daniel Haight and Gilbert Jones, trustees of the said West Lake Monthly Meeting of Friends and to their successors in trust for said monthly meeting, all that certain parcel or tract of land situate lying and being in the township of Hallowell in the county of Prince Edward and province of Ontario, containing six acres (describing them), to have and to hold said lands to said trustees of said monthly meeting for the time being and to their successors in trust as said meeting shall from time to time see cause to appoint for the only use and benefit of said monthly meeting. By a deed dated 14th December, 1835, which recites the deed of 1821 and the act Geo.