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Les cartes, planches, tableaux, etc., peuvent §tre filmds d des taux de reduction diff^rents. Lorsque le document est trop grand pour etre reproduit en un seul clich6, il est film6 d partir de Tangle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n6cessaire. Las diagrammes suivants illustrent la m^thode. 22 1 I ; 1 2 3 4 • 6 v^' IN THE SUPREME COURT OF OA.rvA.i>A.. /I //- ON ^PPEA.L Fi(,iu the Supreme Court of Nova Scotia. MARIA KEARNEY, APPELLANT, AND THE HON. SAMUEL CREELMAN & ALEXANDER P. REID, Respondents. APPELLANT'S FACTUM. / THOMAS J. WALLACE, Solicitor or Attorney for the Appellant. Jas. W. Doipv's Cheap and Expeditious Pkintino Office, 143 Akgyle S Street, Halifax. ,** /VS.Ji.^ffO' y^ In the Supreme Court of Canada. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. f MARIA KEARNEY, Appellant, Bbtween < and (THE HON. SAMUEL CREELMAN and ALEXANDER P REID. Respondents. APPELLANT'S FACTUM. T A ^^'^''T^ originated in the Supreme Court of Nova Scotia, was tried before a Judge without a jury, and a verdict or Judgment rendered for defendants without any reasons given o show what view was taken or upon what principle it was decided. A ItLZ ^^?f 7a f^f ;-"d^«-i» due form taken under the statute to set aside the verdict or Judgment and for a new trial. The action wa^ an action of ejectment L^M M ^"""^ '^""'' *'^ P"P^^'^ " *'^^ ^"'^ ^^"-^ «f "- marriage orindrew and Mary McMinn, a marriage existing at the time Andrew McMinn, the plaintiff's father made his will m 1835. whereby he devised a lot of 160 acres-of which the lo 1 depute any child or children he might have by his then marriage, and. in the event of there bein^ afterw r A r^r^ '''''^ '' ^'"''*^" ^^^^^ "^^^-^ -"«' ^^^ to Ann Byrne Ls Z Set W-n'"' r/;"%'^ '' """^ ''''^'''' ^^ ^ ^«^-- h-b-d' her heir ^d aasigns See Will, page 160. There was no child when the will was made in 18S5 h.if of C Mcnfnf ™^^^^^^^^ Tl 'f; ^^'^ ^' P--^ ^' ^he trial, as weli a. the de^h ISsTtLn .?J' ^Z'';*^''^^'*"'^" ^'^'""^y ^^' h"«band of the plaintiff in 1,885. the possession of the defendants and all other necessary facts, makincr a clear imma fac^e case for the plaintiff The plaintiff also tendered evidence to show tLt the te^^ left property more than sufficient to discharge all his debts, but this was rejected To the case thus made by the plaintiff the defendants say that there were unon the property so devised at the time of the death of MoMinn t^.i.^,, " tJ ^ , one hundred and the other for one hundred and fift^ pounCnd th^'^XTcl ^ thes^, proceedings were, after the death of McMinn. token by Miss Henrietta Phih! Tremain. and a decree of foreclosure of sale obtained. Also that'af^r slh "eel a ^il:: 10 20 30 wa^ instituted by Mrs cMinn in the Chancery Court aj^ainst the plaintiff, the mortgagee and others, for the apphcation of the real estate to the payment of the testator's debts in 7h.T T M .f r^' was made, the property sold and bought in by the complainani in that suit, Mrs. McM.nn, and that she afterwanls made a conveyance of it to parties desig- nated The Commissioners of the Lunatic Asylum," claimed to be a body corporate The defendants set up these pretensions and certain Acts of Parlia.nent either to show title in themselves or that the legal title wa.s outstanding in James B. Uniacke or in some person other than the p laintift. The plaintiff was a mere infant at the time this decree of fore- closure is claimed to have been made against her, and if made, wa.s made without a tittle IZ /;t p^^ ^ '^ ff '"*^°" "^ '^' n.ortgages or as to the existence of a single alle- 10 gation of the Bill, and although the mortgages purported to be executed by the testator's mark, though he could write, and while there were many other facts showing that it was highly improbable that these mortgages were ever made by the testator. The order or decree of sale in the McMinn suit, if made, was also made when the plaintiff here was an infant without any proof of the mortgages or of any of the allegations of the Bill The defendants got in the chief part of the papers in the two suits, the Judge having received ttrth! 'l 7 f f r • '^"' ''"^^^ ""' "'^'^* '^ ^'^^'^^ ^"^^^'' *'-°>- notwithstanding that the plaintiff resisted their reception,- f he mortgages and assignment of them and the W Nu t^' 1 m" T/" '''r"^" '^^'' "^"^ P"^P«^""^' *« ^- -^dl by one /ames 20 W. Nutting to Mrs. McMinn, without its being properly establishe.l or grounds laid for the admission of such copy, the Judge also receiving this subject to all objections. Over forty years elapsed between the time the decree of foreclosure is claimed to have been made and the bringing of this action. No sale is pretended to have been made under the clsu t ff"''^^?™:'^-' P-P-«"g to --ign those . >Hgages and the decree of^ore- closure to James B Uniacke, who was the Attorney of M.^s. McMinn in the McMinn suit A deed wa. in evidence executed by said Uniacke, claimed by the plaintiff to be a release hese mortgages and extinguishment of the title, and by the defendants to be a grant" as igniuent of the mortgages and title to Mrs. McMinn. The deed is at page 140 of the 30 the Chancery Court, as the papers on pages 139, 142 and 143 of the printed case show M^M ?.Y '-.r"'"*'' the McMinn suit, wa. the administratrix of the" tate of McMinn with the will annexed, the tenant for life under the will, and the alleged purchase under the pretended order or decree in the McMinn suit. Miss Tremain appeared 1 the McMinn suit and put in an answer without claiming any right under the dLree or settW his"^ Z ' W "T .^'^ "'" '' ''^^^"" ''' "^* subject'^the'real estate to the pirmet o^ the creditors" nf H i " *' ^^^' ^^''" ""^ ^^^ ^" ^"^^ ^''''^^ at the time giving nerso? T ''i'^'TT T''"''' '^^^ "^■^"^"*^ «'^^"^ ^' ^''^^ «" ^^e real estate of such 40 persons, unkss the Act authorizing the administrator to apply to the Governor or Com the msutut un ox the McMinn suit, such an order wa^ applied for under the Act but was refused by the Governor-in-Council, as alleged in the BUI in that suit. The plaintiff" name was no in he will, as she was not baptized or born when it was made but derifed * her right under the clause of the will giving the property to any child or children Ihe 20 3 ■ ^Il^«ff ■? f M^*"^!.^^ ^''" '^'" °""'''^" '^^''' •« "'^ ^"^g'^t'^" i" the Bill showin. the plamtiff s right m the property under the will, but her ri,.ht is wilfully sn.othered up and and :^o • ^: r."'"^" " ''^ ''^"^'•^^"^^ '^'' ^^- -^y irregular Jf norwholly'void V and those in the McMmn suit utterly void, a^ the plaintiff contends. ^ open itThe Coui^Trnrr.'" ^""'r^TT'' '"' '^' plaintiffs Counsel was proceeding to open It, the Court stopped him and said that they thought the case miaht turn unnn ih. hewou^ifl:::::^^^^^^^ ^o consideration, and among them that of the misreception of evTnt LpfvTnrL h^ thought, as well to these mortgages and the deed from Uniacke Js rich'o^a^^^^ document and papers got in by the defendants ; and if he were correct about thi misre- c ption of evidence, the plaintiff would be entitled to a new trial independently of "veil 'T^^jT r^ "' ''' ""r' ^"^"^^ ^" *^^ ^'^' -^-d by them r'Tspecting the d e^ from Uniacke being argued first and alone, but said that in the event of their delid nl tt nlairff P'" "TT^"'* '^'^ "°"^' ''''''' ^'^ ^'•g"--^ -^ th« whole case, to wh ch view talen tthf 00,?^^ ^vT" '''^'' *^' ''J^'"""^ ^^''^^"'^^^^ ^^'^ '^^"^ -S^-^^ the ZZa by the Court aa to the construction of the deed. The plaintiff waslot aaain relnT' f ''' ^'"'''' "^"^^ ^^^"^ ^^'"^ ^^^^ ^ ^-^^er. delivered the LgmenT" re^ons therefor, commencing at page 168 of the printed ca.e. It is said, at lines Tand 2 o helcrons 3*1'" ^'r ^ '' '' *'^ ^^^ ^«^ ^' ''''• - — ded by Chapter 2 ^Int" But !h ^'"'•P*^^*'^ """^ '''^"^^ ^"^^ " '^^^ Commissioners of the Lunatic Asylum. But there is . . uch corporation, nor was there ever a comoratinn nf ,, "'^ given. The enactment. ..follows: "The title shall be theXS^ZptJ^^^^^^^^ Insane^ The management of the Hospital shall be vested in a S>ard of n^^^^^^^ b^^the namTome c' ''' -^^^ r?"-^' ^^^ are hereby created aTodyTo" 30 I ffi fl Commissioners of the Provincial Hospital for the Insane The i^Z^ of office of three of the Commissioners shall expire on the'30th day of jZ 1860 and^ ^klntl rVK""* »P'>°'"'"'-' ««" ^'^ Pl-e, .nd it i, ,ue.tion.bk if th e'co^rt 11 dT^t: Mr^'^SXTri'^rt did''""'" '"' ''\'"'^«'" "^ *" *' -"^^'^ _^_.. X , , , ^mmn. cut It tfie Court did recognize such a corporation r« nmnovlv ^«51T !^ . ' "^ ^ ** """* "°* '^^'^^ *<^ *b« trial t'lat any conveyance wa;, made by that coiporation. the property would revert on their expiringf if they X 3 ( 1 1 i ' < I c i b F 4 P 81 n n ai • V oi t\ 01 CM sa an hy m< pr all mi th SUl an foi he* the the the rec • pla saji 8Ui cer pas wh Mr. the title in tliem. Th« corpomtion created or contemplatwl by the Act could onlv t«l. property ,„ tnut, and the alleged deed fre„, Mr,. McMinn .Z no made Tn t^^ Th plaintiff therefor, eubmit, that for the« re.»,n., if ever a deed w« ...ISe by MrrUcM^n ir- ftr " "".'"' ' '"■*'"' «"«■'"• •' •" "«"^'""<' property evfr* on broken in the line of claim, Mid a, the present defendants do not claim as oartie, .^11!^ of he suit, or a, privy U. any of the parties, they could not maket^^ Tan^'nhe i^-r. fcrea?sM^:'.°"r ^ii't-'r '"• "" ^-^^^^^^^^^^sZ^zz piU.fL'^'^nlr.na'tJtirdtL^-.^Tarh^TJthrsat or vested in the Commissioner of PnblicVlks ^U^LTi!^:tLr''J:T:' successors in office, in fee simple, for the purpo^,, and use. of such H^t. except by being put in as part of two hu^e ^'^il^T^-':^ .ZVlSl'i »ny, being evidence-and that Mrs. McMinn was allowed iTn.,* /^ """ "'"".'O". " foreclosure suit without oath, still graver donbtsTril^ jt ^e"^ Ir^ITh'" " ' been given by McMinn. The phunUff contend, that more ttrr^rpSi^'J these papei, as part of the paper, in such cases was required of the reTZder^rak! them evidence against the pl«ntiff. The Court says, a? line 5 of „L Z .nHl„M ° ^at.deed e.«mted by Henrietta Ph«be Treml' .J^lLl^ZZZ^tl'Z suitin Chicory breught by mL* Z^^.. ^ I Z^ ZI^^P.^^ZTC r:Ti:i'atrhL:s;^:'Sr. t-i-^. t-^^ -■'« « ^-^ whict Z"^:x -a — ~j — -•■ "--vws X iiucuc i remain. what^wp^^rze^tri-irp^yr/i^-'z^^ Mr. Nuttmg must therefore have sold under «,me smt not known in thtl ;Si^s' 10 20 30 40 and as there was no decree or other of the papers put in to warrant the reception of that deed, It was improperly received even on this groun.l. But there are many other .round hereinafter show, which should have prevented its reception, as the plaintiti tiiinkl The Court at line 27 of page 169, refers to a deed executed l.y Janes B Uniacke he Court str ^ TT "''^''^ '" '^' '^''^ mortgage." That such deed is a grant the Court states as a fact, notwithstanding that the following words are used- "Hath aXirthe" Th ^"\-'--^-*«---" the said indent'ures of i:::t;: ancf e assignment thereof herembefore recited, as also all and singular the lands tenments and w^h all the estate, right, title, interest, claim, property ov deinan.l whatsoever either in andld Znf ' " ''"^l' '""^'^ ^^^^^ ^"^^•^^^' '''' ^ -" *« ^ho said mXi d land and premises or any part thereof, under and by virtue of the said in part recited mdentures of mortgage and assignment thereof, to'the intent that the said mortgage and assignment thereof and r estate thereby granted and created may be foieve dh Mn Wallace a so contended that the deed from Uniacke to Mary McMinn did not convey the fee simple, .t being merely a release of the mortgages." " issumin. that such TI ment extinguished the debt, yet it could not extinguish the title to f lands vtdt r?matrulek:- Th '" iTv^ '" ^'^ ""^ "'"^' ''"^'^ ^«^^"" ^^'^^^ ^^^^ remain in Uniacke. There could be no merger in Mrs. McMinn's title, for she had onlv a W ^ ^' .. "'^ "^ '^'"^ ^" '^' ^'^^'' «'^^t "P to the time • f the makin. of hat deed as the papers at pages 139, 141 and 142 will establish. The Court Teemed to think that as the mortgages were not strictly paid at the day they became due tirmorr gages became absolute and drew the equitable title to them, hit, as the rec lis in the deed from Miss Tremain to Uniacke are not evidence agains Mr K I'ney h^^^^^^^^^ legal evidence against her to show that the mortgages were not strictly Daldath H b"u i^fo'SeTr '^^ '''' ''-' ^''t - '''' ^''^ ''-^ ^^ ^-^^ to te^ n ra? But If forfeit d. no possession was taken, and Uniacke treated the mortgages not as for' t^^e an 1 T : ' " T'f ''' '""^^^""' '"^ ^^ ^"^^^-g securities' in thei rorig LL tae and character and released the mortgages by a relea.; which operated notT a ! I' M u u"^T' ^'"' "^ '^" extinguishment of the title, which had the effecTof making Mrs^McMinn the absolute owner of the legal and equitable title, which however became one by that release, for her life, and the plaintiff here the absolutl own rTn r mainder. It was such a release .s is spoken of in Sheppard's Touchstone, page 321 where t IS said, speaking of relea^ses, " And son.e of them enure by way of ex iLuishm;rt for that he to whom the release is made cannot have the thing released " '''*^"«"'''""^"*' ^""^ r.„ • ^\ • " t'^t'^"';^*' ^. comprehend how the Court could have supposed that the title r ma^ed in Uniacke af er he made and delivered such a deed as th'^and it is st 11 mo e difficult t,o comprehend how the Court could have supposed that it might be in Henri"! Phu.bc xrcmam a«er her deed to Uniacke. At page 321 of Sheppard's Touchstone it" is «axd, A release is the giving or discharging of the right or action which a man Z hav et^., or It IS the conveyance of a mans interest or ^.ht or thing to another that hath J.e possession thereoi or some estate therein." "It rdeiined by some to be an instrum n 10 20 30 40 6 ^^Z'^y "T'V'^^'^^^^^^^ ^'« •^on^etio.es extinguished some- times tra„.erre.l, sometimes abridge,! and son^etimes enlarged." Of cour.se^tl^e in entTon of the grantor governs as to the manner the deed is to operate, and here the intention's clearly expressed the words used being, " to the intent that the said mort-^rand the assjgnuient thereof, and the estate thereby granted and created, ,nay be forever dischled and extinguished." At page 340 of the same work it is said. "By i relel ot J a3s ner of rghts of action and entry the releasor hath to, in or against the land etc so that IS discharged and the releasee is ,n the land by good title. Also by this release are dis in Z' Itt''^'^^' ^" ''''-' ^^ '^-- ^-^ '^''- «^ -^ry "P- ^ -^ition oraliratt parties tn fT T' '^ ^'^';^PP'"''»\To"ehstone, where the effect of the release as among the of the right to the land shall avail and enure to him that hath a reversion or remainder in wi 1 av^M 'V ''''Z"\t 'f'"'' "^ "°'^' '"'^''^ '"^ ^"" *^^t h^th a remainder or reversion will avail and enure to the benefit of him that hath the estate tail, the estate for life or tlntlr'nr tr ' "l '' ^ f T"^ "^^^ ^ '^^'^ *"«^ "^^ ^""^ ^'^'^ ^--- -lease t the tenant for life, this release shall enure to the disseisor ; so if he or a tenant for life make a eas for life, the remainder for life, the remainder in tail, the remainder in fe (oner ating by way of wrongful alienation), and the disseisee or first lessor doth release his Xht to any of hem in remainder, this release shall enure unto and benefit all thTns " A rrwfitoTtt;^"^"" ^^-"-^ ^* -^— h«.d nf '^^r "'! T"^ '^^'' ''™"''' '"''"f ^'^ ^^^^" ^" Sheppard's Touchstone, under the head o Release to the same effect, making it clear that even if this release did ;ot contra McMmn. the tenant for life, it would enure to the benefit of Mrs. Kearney, relieving her Telt 1 wornf^-^ 'T't''^-'-' '' *"^ '^''"^^'^-^ '^^^' titll'otherZ th perfect Wlifl 7"/*^ "«^^^'^« ^^- McMinn anything further than in the same way to 'he uld B ' ':: ''' 'r" ^' '^ ^^^^ ^^^^^^ ^^^ ^^-'^-g^'^ «f the mortgages and fitl thereunder. Because the word "grant" was used, the Court must have concluded that the ^her two words " surrendered " and " released." were thereby nullified. C at pag 327 of the rlnttt' f T" '^" ^"' ^""^ '' ^'' ^'"''^ ^'' ^^^' ^hat he shall be discliarged of the rent, this is a good release of the rent. And it is a rule that by what words a debt o duty may be created by woixis of a contrary signification it may be reWd aTd therefor It , M f ? ' ^'''^ ^''"^ " '"^^^^^^^ «f 'he debt merely, the payment is what thai some o^ th^ liZ;^^.^ l^ Z^i^^ 1 ^JfZ^^r'' '' ''' "^^"™«"' ever very inte]1imhl« a. , PT®"7 admitted at the trial. His objection was not, how- ever, very intelligible, especially in view of the agreement in erideuce of the 17th of Auril last made by him and the defendants' attorney, that the papers and documents o.i el ^ 10 20 30 40 V ^ shall be admitted without proof when they purport to be original papers and documents " But the agreement differed considerably from what the Court stated it to be and set it forth for to the words giv3n by the Court were added the following words, which the Court omit>' ted : provided the originals would be legal evidence, a deed known as the Chancery deed to be proved and not to come under this agreement." The agreement is at page 144 and of eou^e will speak for itself. A copy of this so-called Chancery deed was commented upon as If It were the original to sustain the defence, and. though required to be proved by the agi-eement, the Co" t thought it a very unintelligible objection to insist that before a copy was received some account should be given of the original, also some proof of its delivery - the papers in the cause showing it never was delivered ; and also some proof that the cause was heard and a final decree mad^. The objection, too, to the reception of the papers in these two suits as evidence in this against Mrs. Kearney was also unintelligible to the Court: but surely al the statements in the two Bills in these suits were not evidence against the plain- tiff, nor the statenients in the several answers, nor the affidavits and papers in the contention between Mrs. McMmn ana her solicitor, nor the Eeports of the Master made up without examining a ^vltness and behind the back of the plaintiff, nor the many petitions and affidavits made by Mrs. McMinn, lAvs. Kean, Peter H. Lenoir. James B. Uniacke and others, yet they were all received though objected to. It is unquestionable that these were improperly received and many more, and even doubtful that the mortgages and deed from Miss Tremain ' should have been received. Of course it will be contended that the mortgages and deeds being over thirty years old they were admissible without further proof, but they were suspi- cious on their face, the mortgages being executed by a mark, though the testator could write and though they were not proved in either of the suits, nor was it shown that they were ever u. the hands of the pretended mortgagee, and certainly did not then come out of her hands. They acquired their age too, while the plaintiff was a minor and under disability, and con- cealed from view until the very instant of this trial. The Court says, at page 170, commencing at the first line , " By the mortgaaes to Henrietta Ph. e Tremain, the title of Andrew McMinn passed out of hfm conditiondly t ZTirf . r r'T^"' ''t ^^^ '^ ^'''^'"^ "^ ^p^^^^^^^ p^^^-^' ^^'-^ -« ^^^^ payments were not proved to have been made, the title of the mortgagee became absolute in fee, and. as It was not shown that either of t^. plaintiffs afterwards acquired the title, if it wa not in Mary McMinn when she conveyed o the Commissioners, it must still be in Henrietta Phc.be t^ eT!"d r r f ""f '"•" "^'^ '' ""'''''' ^^^"^^^^ ^y ^'- -g---t respecting the deed to UniacKe. and to tliat may be added that payment at the day ir presumed unles! the contrary is shown, and not the reverse, as the Court concluded ; and even if Mrs. McMinn had merely tlie bare possession without any title, or a bare right without possession, the release would have had the effect contended for. and there is no possible way that mLs Tremain could have the legal title in her after making the deed to Uniacke, unless that, as she was a defendant m the McMinn suit, appearing and answering thereto without claiming any benefit Zt I'^^Zr''': ff ^V^tt'^^g "P tl'e decree as a defence, but submitting herself to the Court with all her rights and interests, the deed to Uniacke transferrins tl^o nmrfaa^e^ -o. void, or that the mortgages having merged in the decree, they could'not be transferred' or ""'T''^' ^';\fy '^'' ^^'^'^^^^ Miss Tremain, Uniacke and Mrs. McMinn being estopped by their deeds and conduct from doing so. It appears Miss 10 20 30 40 T IT re b( cl ti] ac de cc DC m al pl dc so tn ha Tr JU( on pa to pi. rej foi hi£ th( sell ofi 8 Tremain remained a defendant in that suit to the end of the proceedings. Uniacke never made himself a party, and even if he had, being solicitor for Mrs. McMinn, and having released these mortgages, he would be occupying an anomalous position to be a party, or to be taking exception to his own proceedings ; but he went on more consistently making no change, but prosecuting the suit against Miss Tremain, whose name ue left upon the record till the very end of the proceedings, aye, even to the present day. The decree of foreclosure was not transferred to Mrs. McMinn as it had been to Uni- acke, but was dropped and abandoned, showing further the intention not to do more by the deed than to release and discharge the mortgages and extinguish the title. But if the title continued in Uniacke or Miss Tremain, as intimated by the Court it might possibly, it would 10 no longer be a subsisting title, more than twenty years having run against it, and in an eject- ment would be presumed to have been transferred, and, if the decree ever had any force it also ceased to have it after a Uke period of twenty years. The Court admitted that the plamtiff made out a pnrmfcuiie title, and if so. it is not enough for the defendants to throw doubts of a possible title in some one else. They must establish positively a title certain in some certain person, even if the title of the mortgager can be questioned by strangers con- trary to the American authorities. The Court did not, however, confine themselves, as the plaintiff thinks they should have done, either to the mortgages and decree of foreclosure and deeds from Henrietta Phoebe Tremain and from Uniacke, or to the proceedings in the McMiau suit, in making up their 20 judgment deciding that the legal title was not in the plaintiff, but relied somewhat upon the one and somewhat upon the other, though inconsistent and repugnant, the Court referring particularly to the alleged order, or decree of sale in the McMinn suit and the deed purporting to be from the Master ; but the plaintiff submits that no title can be made or supported to dis- place the plaintiff's admitted p-ma /ocie title under these proceedings, if even autlientic and regularly in evidence. 1st. Because the Chancery Court had no jurisdiction to entertain the McMinn suit, for, among other reasons, the will did not subject the testator's real estate to the payment of his debts, but the same was devised and the personal property alone directed to be applied to the payment of debts, the residue to go to the widow, 30 12 Sim. 274, Story's Equity. Jur. 530 to 552, 547, 548, 546. ^ /*lh V'^C Toller on Executors, 454. jf^V-^' / 2 Jacob & Walker, 1 ; 5 Beav., 398. ^ '' " ''' Eover on Judicial Sales, 311. 0^ Chapter 5, tiec. 1, Acts of 1760, vol. 1, page 58, Nova Scotia Statutes. , '7 ^ Story's Eq., PI. 163-172, 176, 180, 205, 206 and 492. 491. and 598-608. Story's Eq., Jur. 1445 aud 1448. Rover, 21, or page 31 ; also. Sec. 33. or page 62. 12 Sim, 274. 2nd. Because the Governor and Council having been applied to for permission to sell the land in dispute herein and other lands for the payment of debts, before the institution of the McMinn suit, and the Governor and Council having refused to grant permission to sell. 40 9 such decision was a judgment in favor of the plaintiff in this suit, and other devisees or at ^::^^r ''''''' ''' "^^^^' ^"' ^°^^"^ ''' ^-™ °^ ^" ^-^. ^^ -y. oTcoir^e:' Chapter 5, Sec 1, of Acts of 1760. Vol. 1. page 58, Nova Scotia Statutes. rreeman on Judgment, 319. 1 House of Lords Cases, 191, Law Kep., 2 P. and M., 41. 3 Chancery Div., 27. Viner's Abridgment^ Evidence (a b 58). ^t . . ^'t n ''^"'' "°'^'' ^^*P^' ^' ^''- ^' ^'^ °^ 1760, Vol. 1, page 58 Nova Scotia Statutes, he Governor and Council having the power to grant or re us^ordel Ir L s ^ of the rea^ es^te of deceased persons for the payment of debt, and having refused Tn o d r I s ontetre XnT ^ ^ .^^^^^^.^^^^^^ ^ -* ^«^»^ - the bill fn that cause.th aecision fixed the title if it required any fixing irrevocably in the devisees, and the jurisdic- tion assumed over this property by the Chancery Court after such decision by the Governor and Council was unwarranted, and all proceedings therein taken were nuU and void esZaUy as regards the plaintiff, then an infant. ' ^^^^^^^^ 1 H. L. Cases, 191. 4 Allan N. B. 484. 3 Ch. Div., 27. finn.H A*?' ^'°^"'' *^ P°^«^ ^««t«d ''^ tJ^e Governor and Council under the above-men- tioned Act was an exclusive power, and did not extend to the Court of Chancery and c^uW not b^^e^xe^ised by such Chancery Court either before or after its exercise bTLtvr^^^ h . , ^^ .^^T"^ '^ "'^ ^^'''^^ °^ "^^^ ""^^ "^^'^^^ '^ ^«8 not signed by the Chancellor bu only by the Master of the Eolls, who could not make a valid decree in a^y c^e ex pj in the absence of the Chancellor from Halifax.-a cin^umstance nowhere appeX LTe order or decree, or in any ot the papers, or proved. ppe^umg in tne Chapter 52, Sec. 6, Acts 1733. Vol. 2, page 232, N. S. Statutes. rp.l .?^* -.f'T"' ?.' '''^*"' ^''''"^ '^' P*^^""" ""^«^ ^«t of Parliament to devise his real estate without quahficUon and having done so. the title was irrevocable in the d vise Chapter 11. Sec. 1, Acts 1758, vol. 1, page 9, Statutes of Nova Scotia. h..n J'^'. ^'rV^' P^'"'^^' ^*^^"° °° '^^^ «^^Pt «« devisee, and that not having been ordered t. be sold, such title was not effected by the sale which teok pla^Tf any o^ b| any of the proceedings in the cause instituted by the administratrix. ^' 8th. Because if the power to devise lands was in anv monn- o^allfiH -•--•.'- -u plaintiff disputes, it was subject oni- to the qualification of th";- Go^r^^rd a^nl^^^^^^^^^^ ing a sale when applied to; and tl not directing s. sale, but refusing it. We and was discharged from that qualification and passed absolutely to the devisees 3 Ch. Div.. 27. I 10 20 30 40 tl ir le w hi cl th ap: otl rig sh( 10 9th. Because the Master was not the person to convey the property, and it should ha/e been conveyed if the decree was regular by the parties interested, or only by the Master m the event of their refusing when so ordered to convey, or, if sold by force of the statute should be conveyed by the administratrix, and the Court in ordering him to convey in the first instance and before a refusal by the parties, exceeded its jurisdiction if it had any other- wise in the cause. ^ Clause 8 and n of Chapter 52, Acts 1783, vol. 2, page 232, N. S. Statutes 8 Beav. 512; 10 Sim. 167 ; 4 Mad. 376. Simpson on Infants, 472 ; 9 Beav., 366. Dan. Ch. Pr., 1032, 1031, 104i-1264. 21 Story's % Jur., 744 ; 21 Beav., 559 ; 17 Beav., 582. .V, nu ^^^^' J^^°^"'^ '^ "^^^ "'^^ P^^^^ at the trial that Jas. W. Nutting was a Master of tne Chancery Court, nor any evidence tendered respecting his appointment. 11th. Because the original deed, if any, to Mary McMinn, under which defendants Claim, was not produced or its non-production accounted for, nor was there any proof of its dehvery to her, nor-that she went into possession under it, and otherwise lacked proof and aid not come out of her possession, nor was it proved that it ever was in her possession.' h.r f . J^'^" -if ''""'', ^^' ^1" ^''^ °'^ '^''^ '°y ^''"' respecting the rights of the plaintiff in her fathers will, or seek to sell her interest as devisee, or aUege that she was devisee, and there ,s not any allegation in the Bill showing that Mrs. Kearney, then Maria McMinn, had any interest whatever in the property now in dispute, and the only allegation respecting the interests of parties is in these words; "And your oratrix further gheweth unto Your Excel- lency that the said Andrew McMinn departed this life a short time after making such his last will and testament without in any manner altering or revoking the same, leaving your oratrix his said widow, John Andrew McMinn his son. Jane Norris and Mary Norris his grand- childi-en. and the several children named in the said will him surviving," without Maria McMinn s name being mentioned ; and as her name is not in the will, it was not included in the reference or words, " the several children named in the last wUl." 1 L. Rep., Ch. Ap., 108. Bigelow on Estoppel, 84, 93, 94, 100, 101 and 102. 3 East. 346 ; 6 T. R., 607 ; 2 C. B., N. S.. 454. 2 Sch. and Lef.. 293 to 306 ; 1 Sch. and Lef., 396 ; 2 Exch. 665-681. Comyn's Dig. (A 1, Estoppel, and E. 4 and c.) Freeman on Judgments, 257 ; 4 M. and W., 327. Eover on Judicial Sales, 66. Bigelow on Estoppels, 592 to 598. Dan. Ch. Pr., 659 ; 2 Ld. Red., 237. Rorer on Judicial Sales, Sec. 35. or page 66. 13th. Because the complainant in that suit could not institute proceedings for the application of the real estate to the payment of debts, even if the Court had jurisdiction otherwise, but this wouj^ bo the right only of a creditor or creditors; and if she had such right the order of sale should have authorized her to sell as the statute directs, and she should have given the security the statute exacted. 10 20 30 40 11 14th. Because th. order or decree of sale having only directed the sale of lands and enementa of Andrew McMin. it could not ...rate, there being then no lands or tT'lnta of Andrew McMmn. they having at his death passed to the devisees under his wUl. no "out any title be transmitted by a sale under such an order, and