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A House Divided 233
V.
SO WHAT IS THE LAW
Before expressing any concluded opinion as to which of these two (or three)
divergent perspectives is correct, it might be wise to ask ourselves a few hard
questions.
Can the wording of the Manitoba and Ontario statutes now under scrutiny
possibly be taken to “mean just about what it says” If it does, it represents a
dramatic departure, first, from the position generally prevailing, to this day, in the
rest of Canada; and secondly, from the law as anciently developed in England,
and universally applied in the common law world in the days before these statutes
were enacted. Both these assertions on my part may seem to call for explanation
and justification, which I shall now attempt.
As to the former proposition, I shall simply cite the summary given by
Professor Bora Laskin (as he then was) in the 1964 edition of his text “Cases and
Notes in Land Law”:
It has been held that an applicant for partition under the general run of legislation in the
common law provinces must have an estate in possession or have the immediate right to its
possession; hence a registered judgment creditor of a joint tenant has no standing to seek
partition (see Morrow v Eakin [1953] 2 DLR 593, 8 WWR (NS) 548 (BC)), nor has a
claimant of a legacy charged on land (see Re Fidler and Seaman, [1948] 2 DLR 771, [1948]
OWN 454), nor has a widow who is entitled to dower out of the land held in co-tenancy
(see Morrison v Morrison (1917), 39 OLR 163, 34 DLR 677 (App Div)), nor has a mortgagee
of a co-tenant who is still in possession (see Mulligan v Hendershott (1896), 17 PR 227 (Ont))
In so far as partition legislation in Canada may be invoked only by persons in possession or
entitled to immediate possession, neither reversioners nor remaindermen who are coowners
of such interests may seek partition either against an existing tenant for life, in any
event because there is no co-tenancy with a life tenant (see Murcar v Bolton (1884), 5 OR
164) or as against each other (see Morrison v Morrison, supra), even though there is no
intention to disturb an existing life tenant (see Bunting v Servos [1931] OR 409, [1931] 4
DLR 167 (CA)) 72
As to my second assertion, that the traditional stance of the whole law, prior
to these statutes, is seemingly challenged by the language of the modern Ontario
and Manitoba statutes, I must say a little more.
Whatever may have been its other shortcomings, the old writ de partitione
facienda was admirably clear as to its function and range of application. As Sir
Edward Coke put it “It is to be observed that the words of the writ de partitione
facienda be “quod cum eadem A et B insimul et pro indiviso teneant tres acras &”; 73 this
meant, he explained, that to claim partition, one must be (a) a tenant in
72
73
Bora Laskin (as he then was), Cases and Notes in Land Law, rev ed (Toronto: University of
Toronto Press, 1964) at 402 [emphasis added]. We shall look at some of the cases cited inter alia
later. The phrases emphasized by me show the acuteness with which the learned author
deliberately accommodates and reserves comment on the Manitoba and Ontario positions.
Coke on Littleton, supra note 7, Co Litt Lib 2 167.