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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 84 85 86 87 88 89 90 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.
A House Divided 237 because of the unqualified and to my mind inflated effect accorded to this case by the Manitoba Court of Appeal in Chupryk v Haykowski, which will be discussed shortly. Devereux v Kearns, 91 a decision of Ferguson J, is said by its headnote-writer to have “overruled” Rody, and to have held that a doweress, though her dower still be unassigned, was entitled, under the statute, to seek partition, since she was a “party interested in the land” within the meaning of section 8, giving the statute its “fair and obvious meaning”. The language of Ferguson J in relation to the Rody decision is language of politely deferential disagreement, to be sure. But the real mystery of the case is how Ferguson J escapes the clear implications of the thenrecent judgment of his own Divisional Court in Murcar v Bolton, 92 to the effect that remaindermen cannot seek partition against a sitting life tenant. As it was, the case of Fisken v Ife in 1897, 93 as discussed below, must surely be regarded, in retrospect, as having implicitly overruled Devereux v Kearns. 94 While the differences of judicial opinion as to the scope of the statutory partition remedy were obvious just “below the surface” in these dower cases, they really come into the open most starkly in the still-important case of Murcar v Bolton, 95 which divided a Divisional Court of the Ontario Court of Queen’s Bench in 1884. Murcar, which was the first appellate ruling of the Ontario courts germane to the ambit or scope of the statutory jurisdiction in partition, only made its appearance in 1884, and disclosed sharp differences of opinion in a strong Divisional Court of the Queen’s Bench Division. The facts were simple enough. A Crown grant had conferred upon Flora Bolton, the defendant, a simple and undivided life estate, with remainder to the defendants, her five children, in fee simple. Eight years later, with Mrs. Bolton quietly in possession of her life estate, the children (tenants-in-common of the remainder) were seeking an order of partition or sale, to dispossess her. A County Court judge, relying on the version of the Ontario Partition Act then in force, 96 ordered the sale; and the widowed mother of the petitioners appealed. The majority judgment (by Hagarty CJ, Cameron J concurring) was short and lucid. They allowed the appeal, assuring Mrs. Bolton that she could remain in her house, and that her children would not be allowed to unseat her. With thinly disguised outrage, the judges observed that “no such proceedings would have been 91 92 93 94 95 96 (1886), 11 PR 452, (Ont HC). (1884), 5 OR 164, [1884] OJ No 211 (available on QL) (Ont HC) [Murcar]. (1897), 28 OR 595, (Ont Div Ct). Which, incidentally, had already provoked an embarrassing and ill-concealed difference of opinion in the Divisional Court ten years earlier in Fram v Fram (1887), 12 PR 185 (Ont CA). Supra note 93. Supra note 35.
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A House Divided 237<br />
because <strong>of</strong> the unqualified and to my mind inflated effect accorded to this case by<br />
the Manitoba Court <strong>of</strong> Appeal in Chupryk v Haykowski, which will be discussed<br />
shortly.<br />
Devereux v Kearns, 91 a decision <strong>of</strong> Ferguson J, is said by its headnote-writer to<br />
have “overruled” Rody, and to have held that a doweress, though her dower still be<br />
unassigned, was entitled, under the statute, to seek partition, since she was a<br />
“party interested in the land” within the meaning <strong>of</strong> section 8, giving the statute<br />
its “fair and obvious meaning”. The language <strong>of</strong> Ferguson J in relation to the Rody<br />
decision is language <strong>of</strong> politely deferential disagreement, to be sure. But the real<br />
mystery <strong>of</strong> the case is how Ferguson J escapes the clear implications <strong>of</strong> the thenrecent<br />
judgment <strong>of</strong> his own Divisional Court in Murcar v Bolton, 92 to the effect<br />
that remaindermen cannot seek partition against a sitting life tenant. As it was,<br />
the case <strong>of</strong> Fisken v Ife in 1897, 93 as discussed below, must surely be regarded, in<br />
retrospect, as having implicitly overruled Devereux v Kearns. 94<br />
While the differences <strong>of</strong> judicial opinion as to the scope <strong>of</strong> the statutory<br />
partition remedy were obvious just “below the surface” in these dower cases, they<br />
really come into the open most starkly in the still-important case <strong>of</strong> Murcar v<br />
Bolton, 95 which divided a Divisional Court <strong>of</strong> the Ontario Court <strong>of</strong> Queen’s<br />
Bench in 1884.<br />
Murcar, which was the first appellate ruling <strong>of</strong> the Ontario courts germane to<br />
the ambit or scope <strong>of</strong> the statutory jurisdiction in partition, only made its<br />
appearance in 1884, and disclosed sharp differences <strong>of</strong> opinion in a strong<br />
Divisional Court <strong>of</strong> the Queen’s Bench Division. The facts were simple enough. A<br />
Crown grant had conferred upon Flora Bolton, the defendant, a simple and<br />
undivided life estate, with remainder to the defendants, her five children, in fee<br />
simple. Eight years later, with Mrs. Bolton quietly in possession <strong>of</strong> her life estate,<br />
the children (tenants-in-common <strong>of</strong> the remainder) were seeking an order <strong>of</strong><br />
partition or sale, to dispossess her. A County Court judge, relying on the version<br />
<strong>of</strong> the Ontario Partition Act then in force, 96 ordered the sale; and the widowed<br />
mother <strong>of</strong> the petitioners appealed.<br />
The majority judgment (by Hagarty CJ, Cameron J concurring) was short and<br />
lucid. They allowed the appeal, assuring Mrs. Bolton that she could remain in her<br />
house, and that her children would not be allowed to unseat her. With thinly<br />
disguised outrage, the judges observed that “no such proceedings would have been<br />
91<br />
92<br />
93<br />
94<br />
95<br />
96<br />
(1886), 11 PR 452, (Ont HC).<br />
(1884), 5 OR 164, [1884] OJ No 211 (available on QL) (Ont HC) [Murcar].<br />
(1897), 28 OR 595, (Ont Div Ct).<br />
Which, incidentally, had already provoked an embarrassing and ill-concealed difference <strong>of</strong><br />
opinion in the Divisional Court ten years earlier in Fram v Fram (1887), 12 PR 185 (Ont CA).<br />
Supra note 93.<br />
Supra note 35.