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A House Divided 231
sales on the application of people sharing the real estate. Two Yes, for long
before any Canadian partition statute was ever enacted, there had been Settled
Estates legislation to be taken into account. A strange little procession of these
statutes under a variety of titles and gradually expanding in scope, may be traced
in the English statute book from the early 1800s onwards, and all had the same
basic function. They were designed to enable the holders for the time being of
limited interests in land (almost invariably life tenants) to deal with the fee simple
title to the land (which ex hypothesi they lacked) in such a way as to “bind the
remainderman”, and “saddle” him with the results of such transaction – which
might, for example, be a lease of the land for a term of years, or an outright sale of
the fee simple title. In cases where these Settled Estates Acts applied, the
remainderman might find himself “stuck”, after the life tenant’s death, with
whatever was left of a lease granted to a third party by the lamented life tenant; or,
in a more extreme case, made to content himself with money in lieu of the
landholding he had hoped for, in consequence of the life tenant having sold the
land with the permission of the Court under the Settled Estates Act.
The powers of sale and other powers of disposition conferred by Settled Estates
Acts – some of which still exist in Canada – were always made available to the
current life tenant, and no-one else: and it would (usually subject to judicial
approval) avail him against his remainderperson or reversioner. In other words,
they were designed to operate between and affect the rights of persons “sharing”
the land by way of temporally consecutive estates – not, like Partition Act powers of
sale as traditionally understood, between persons simultaneously sharing, spatially,
a single estate.
A lawyer of the 1880’s would have well understood this divergence of
functions between Partition Statutes and Settled Estates enactments: and might
lightly dismiss any suggestion that any confusion of their functions, or any
usurpation, by the Partition Act powers of sale, of the functions of Settled Estates
Act, was seriously in prospect.
Yet it is my contention in this paper that this confusion or “slippage” of
functions is precisely what threatened to happen in Ontario in the late Victorian
period, and ultimately has happened, more recently, here in Manitoba; 71 and the
consequences are with us still.
The reason for this confusion is not just that lawyers have at various times
“taken their eyes off the ball”, or exploited judicial inattention for their clients’
ends. Rather it lies in the extraordinarily broad language used in the key
provisions of both the Ontario statutes and Manitoba’s (right from the original
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The “take-off” point for this faux pas, as I see it, is the judgment of the Manitoba Court of
Appeal in Chupryk v Haykowski, and the story is more fully recounted in my earlier note in this
journal, “Unsettled Estates: Manitoba’s Forgotten Statute” etc.