Blackburn v. McCallum

Blackburn v. McCallum

A general restraint on alienation attached to a devise in fee simple, even if limited as to time, is void; therefore the devisee takes a fee simple absolute which is exigible for his debts and a sheriff's sale under execution conveys the fee simple (and a mortgage executed in breach is void but does not operate to forfeit the devise absent an express forfeiture).

Citation
(1903) 33 SCR 65
Parties
Appellant (plaintiff): Henry D. Blackburn; Appellant (plaintiff): Alfred B. Cox; Respondent (defendant): J. H. McCallum
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
17 February 1903
Procedural Posture
Appeal to Supreme Court of Canada From High Court of Justice for Ontario on a Special Case / On Appeal (special Case Submitted by Consent)
Outcome
Appeal allowed; declaration for appellants that devisee took fee simple absolute and that the land was subject to sale under execution; plaintiffs entitled to make title; appeal allowed without costs.
Legal Topics
Restraint on Alienation, Validity of Testamentary Conditions, Mortgage Validity, Execution Sale, Forfeiture
Source Language
English
Estates Property Wills and Succession Equity Restraint on Alienation Validity of Testamentary Conditions Mortgage Validity Execution Sale +1 more

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Parties

Henry D. Blackburn

Appellant (plaintiff)

Alfred B. Cox

Appellant (plaintiff)

J. H. McCallum

Respondent (defendant)

Procedural Posture

Appeal to Supreme Court of Canada From High Court of Justice for Ontario on a Special Case / On Appeal (special Case Submitted by Consent)

Legal Issues

  1. 1 Whether a general restraint on alienation annexed to a devise in fee, limited as to time, is rendered valid by the time limitation
  2. 2 Whether a mortgage or other encumbrance executed by a devisee in breach of such restraint is void and whether breach operates as forfeiture of the devise
  3. 3 Whether lands subject to such a devise are exigible under execution for the devisee's debts and whether a sheriff's sale conveys a fee simple absolute

Ratio Decidendi

A general restraint on alienation attached to a devise in fee simple, even if limited as to time, is void; therefore the devisee takes a fee simple absolute which is exigible for his debts and a sheriff's sale under execution conveys the fee simple (and a mortgage executed in breach is void but does not operate to forfeit the devise absent an express forfeiture).

Court Disposition

Appeal allowed; declaration for appellants that devisee took fee simple absolute and that the land was subject to sale under execution; plaintiffs entitled to make title; appeal allowed without costs.

Orders

  • Appeal allowed
  • Judgment entered for appellants