Kearney v. Creelman

Kearney v. Creelman

The appellant could not recover in ejectment because she lacked the legal estate: either the sale under the chancery decree (valid under Imperial statute) conveyed the legal estate to purchasers and thence by statute to the defendants, or, if that sale were ineffective, the legal estate remained outstanding in the mortgagee or her assignees; in either event the plaintiff had no legal title to recover.

Citation
(1886) 14 SCR 33
Parties
Appellant; Plaintiff (devisee): Maria Kearney; Respondent; Defendant: Samuel Creelman; Respondent; Defendant: Alexander P. Reid
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
17 February 1886
Procedural Posture
Ejectment (appeal) / Appeal to the Supreme Court of Canada From Supreme Court of Nova Scotia Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Will and Devise, Mortgage Foreclosure, Sale Under Chancery Decree, Statutory Confirmation of Title, Ejectment
Source Language
English
Estates Real Property Mortgages Equity Will and Devise Mortgage Foreclosure Sale Under Chancery Decree Statutory Confirmation of Title +1 more

Case Brief

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Parties

Maria Kearney

Appellant; Plaintiff (devisee)

Samuel Creelman

Respondent; Defendant

Alexander P. Reid

Respondent; Defendant

Procedural Posture

Ejectment (appeal) / Appeal to the Supreme Court of Canada From Supreme Court of Nova Scotia Judgment

Legal Issues

  1. 1 Whether a sale under a Court of Chancery decree made pursuant to Imperial statute authorized sale of deceased's land in Nova Scotia despite provincial procedure requiring Governor in Council order
  2. 2 Whether assignment/release of mortgages transferred legal estate or merely extinguished debt
  3. 3 Whether subsequent provincial statutes vested fee simple title in the defendants

Ratio Decidendi

The appellant could not recover in ejectment because she lacked the legal estate: either the sale under the chancery decree (valid under Imperial statute) conveyed the legal estate to purchasers and thence by statute to the defendants, or, if that sale were ineffective, the legal estate remained outstanding in the mortgagee or her assignees; in either event the plaintiff had no legal title to recover.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.