years. Cavana's mining rights were not assessable in the remaining years and were not in fact assessed. Therefore, there were no taxes on those rights in arrears for any period for which they could be sold, and the section has no application.
It was argued that Cavana was in law and in equity the owner at all material times of all the interests in the fee simple, of both the mining and the surface rights, in the lands in question. This is based upon the fact that in the transfer to Cavana and in the certificate of ownership issued to him after the severance, he is described as a trustee.
The argument is that there was a resulting trust when he, as trustee, conveyed the surface rights to Ferguson. Whatever might be the position as between Cavana and Ferguson, it is impossible for the appellants to raise any such issue in these proceedings.
Certain defects in the assessments and the tax sale were alleged by the respondents, which need not be considered. The appeal should be dismissed with costs.
Solicitors for the appellant Township of Tisdale and the appellant Murphy: Langdon & Langdon.
Solicitors for the appellant Lang:Lang & Michener. Solicitors for the respondents: Mason, Foulds, Davidson & Kellock.
BERTHA McFADYEN DOUGAL
McFADYEN
C. HARVIE
APPEAL by the plaintiffs from the judgment of the Court of Appeal for Ontario (1) dismissing their appeal from the judgment of McFarland J. dismissing their action.