McNish v. Guerard

Johnston, Ch.
delivered the opinion.

The Court is satisfied with so much of the decree as re*83lates to Stock Farm, except, that as the case is to be retained for further inquiry in relation to The Bower, which may result ( in a decree in favour of the children of Mrs. McNish, it is thought that no order should have been made on the subject of costs at this time. It is, therefore, ordered that the question in relation to costs be reserved until the further hearing of the case.

It is thought by this Court, that the leave given to make John EL McNish a party for the purposes of the partition of The Bower, (if the case be further prosecuted with a view to the partition of that tract) was unnecessary. In announcing the judgment of my brethren that he will not be a necessary party for that purpose, I merely take the liberty to say, that I entertain some doubts upon the subject.

The majority of the Court also concurs with so much of the decree as holds the uses in The Bower to have been executed; and that no legal title vested in the nominal trustee, John McNish.

A majority'- of the Court also concurs in the order for further inquiry directed by the decree, upon the ground, that if the Chancellor was not satisfied, it was within his discretion to order the case to be further-heard.

It is ordered, that the decree be modified according to the foregoing opinion.

Caldwell and Dargan, CC. concurred.

Dunkin, Ch.
The children of Mrs. McNish seek patition of The Bower, and Mrs. McNish prays to be put in possession of the Stock Farm, and these are the points considered by the decree. For the adjudication of these matters, I am of opinion that John H. McNish is not a necessary party, and such I understand to be the júdgment of -a majority of this Court.

On the state of facts disclosed by the pleadings and proofs, I rather think Mrs. McNish would not be permitted to disturb the title of the defendant in Stock Farm, but that she should be confined to her claim on the fund; * and I should be better satisfied if, instead of dismissing her bill, she had been permitted to amend with this view. But there is no -ground of appeal to this effect; and I concur in the conclusion that she is not entitled to a decree for the possession and delivery of the premises.

Decree modified.

Note. — The bill set up no claim to the fund.