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236 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
suits are, one suspects, straightforward conflicts between concurrent owners of a
fee simple in possession; and one may readily believe that in most other cases, a
peaceable solution by agreement may be arrived at, and costly litigation avoided,
which might have put in issue and perhaps resolved the more challenging legal
difficulties.
In the event, it must be admitted that the debate in Ontario, once litigants
and judges had attuned themselves to the outwardly astonishing breadth of the
“new generation” of partition legislation from 1869 onwards, got off to rather a
bad start. Widows whose dower rights were as yet unassigned, but who were
impatient to realize upon their rights, sought to circumvent the delays of the
dower legislation 84 by application for partition, (or more frankly, for sale in lieu of
partition) under the then current Ontario Partition Act. 85 Even now, reading the
case-law of that era, the discomfiture of the Ontario judiciary, seeking to reconcile
these statutes, can be clearly sensed. The issue clearly provoked real differences of
opinion. The quality of the reports and, one fears, of the judgments they purport
to reflect, is variable. In Rody v Rody, 86 we are treated to a meticulous and learned
analysis 87 of the problem, and a doweress whose dower had not yet been assigned
was denied partition on the twin grounds, apparently, that she was (a) not in any
sense a concurrent owner; and (b) that her “interest” was not in possession. In
1883, we encounter Lalor v Lalor, 88 a case so inadequately reported that the
divination of its facts is itself a challenge, and the legitimacy of its ratio (and its
headnote too) accordingly a matter of speculation. Again, it was an action by a
doweress who was also a life tenant in the share of a child who had predeceased
her. Proudfoot J declared that whatever rights she had as a doweress, she was
certainly entitled as a life tenant to seek partition. So the headnote baldly states
“A tenant for life is entitled to a partition.” But all the internal indicators, such as
they are, suggest that she was only a tenant in-common of the life estate, not a sole
owner thereof. Gaskell v Gaskell, 89 the only case cited in support of the judgment,
was a case of that kind, and as such frankly uncontroversial, since co-holders of a
life tenancy, as we have seen, had been entitled to seek partition for the duration
of that estate ever since King Henry VIII’s statute of 1540. 90 I labour the point
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86
87
88
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Notably the Dower Procedure Act, SO 32 Vict c 7, incorporated into RSO 1877 c 55.
Supra note 36.
(1881), 1 CLT 546.
By Judge Kingsmill of Bruce County, who sets an example in scholarship which later judges at
more elevated levels would have done well to follow.
(1883), 9 PR 455, (Ont HC).
(1836), 58 ER 735, 6 Sim 643 (Ch).
Supra note 13. The view here taken, I am pleased to see, is shared by Dupont J in the later
Ontario case of Morris v Howe (1982) 38 OR (2d) 480, 138 DLR (3d) 113 (Ont HC), discussed
post.