The document executed by Mercer was not sufficient to divest the patentee of title, for: It does not even mention the name of the patentee. It does not profess to be executed on her behalf. There is no evidence to shew that Mercer had authority to act for Mrs. Wigle.

A married woman could not at that date lawfully appoint an attorney to convey her real estate for her, nor could her real estate have been conveyed in any other way than by deed, duly acknowledged, and executed jointly with her husband in accordance with the provisions of 59 Geo. III., ch. 3: see Doe McDonald v. Twigy, 5 U. C. R. 167; Doe Bradt v. Hodgkins, 2 U. C. Jurist, O. S. 213: Foster v. Beall, 15 Gr. 244; and any conveyance executed by her other than as above would have been absolutely void.

Moreover upon the issue of the patent, her husband became entitled to a freehold estate in possesion in this land for the joint lives of himself and his wife, and would be a necessary party to any contract for the release or surrender of the same.

It is submitted therefore: That the sale for taxes and conveyance by the sheriff in pursuance thereof vested the fee in the purchaser, and that the subsequent patent to him, through which the defendant claims, is absolutely void, and is no defence against the plaintiff's title under the purchaser at the tax sale, for the King can no more grant what he no longer owns than a subject can," and a patent of lands which had before been granted to another will be held void in ejectment brought by the first patentee. See Doe Malloch v. The Principal Officers of H. M. Ordnance, 3 U. C. R. 387.

Nothing can be presumed, nor does any equity arise to assist the defendant, from the alleged fact that the Crown granted another lot to Isabella Wigle in lieu of that said to have been surrendered, for the further evidence now admitted shews that, if any such grant was made, it was not till after the sale for taxes of the lot now in dispute when we find her petitioning for another grant, and it is submitted that anything which took place after the title

in fee simple had been vested in the purchaser by the sheriff's deed could not affect it.

But even if nothing passed by the patent to Isabella Wigle, it is submitted that the sale for taxes and sheriff's deed in pursuance thereof, operate under the statutes to vest a title in fee in the purchaser even as against the Crown.

In Doe McGillis v. McDonald, 1 U. C. R. 432, it was held that lands described as "Granted" by the SurveyorGeneral (as this land was) were taxable under 59 Geo. III. chs. 7 and 8, although no letters patent for them had ever issued. And as to sale for arrears under 6 Geo. IV. ch. 7, see judgment of Sir John Robinson in that case, p. 435; Charles v. Dulmage, 14 U. C. R. 585.

In Doe Stata v. Smith, 9 U. C. R. 658, it was held that lands returned in the 'Surveyor-General's schedule in June, 1820, would on 1st of July, 1820, become chargeable with that year's rates under both statutes of 59 Geo. III. chs. 7 and 8.

The sheriff's deed under the Act conveyed to the purchaser a title in fee simple: see judgment of Draper, C. J., Ryckmen v. Van Voltenburg, 6 C. P. at p. 387.

In any event it is submitted the appellant is entitled under the provisions of 33 Vict. ch. 23, sec. 13, to a lien upon the land for the purchase money paid at the tax sale and interest, and for the amount of all taxes paid by him since and interest.

Falconbridge and T. M. Morton for the respondentThe burthen of proof in such cases as this is on the purchaser at the tax-sale. The regularity of all proceedings is to be shewn by him, and the remedial statutes 33 Vict. ch. 23, &c., do not here apply. Sales and purchases founded on forfeitures deserve no indulgence from the Court: Cooley on Taxation, pp. 322, 325, 326, 329. The question is not of surrender of the grant and re-conveyance of the estate. There was an immediate disclaimer and disagreement to the grant, which had been made improvidently, and without any request of the grantee, and the Crown 21-VOL. XII A.R.

simply revoked the patent and resumed the land; and it is to be observed that the new grant to Isabella Wigle refers only to the original order in council of 1808. If title ever vested in Isabella Wigle, and if the document executed by Mercer is for any reason defective as a surrender or conveyance to pass her interest, yet after this lapse of time a valid and effectual surrender will be presumed, the Crown having accepted the same, and acted on it by granting another lot in lieu thereof to Isabella Wigle, and by subsequently granting a patent of the lot in question to H. L. Hime: Best on Presumptions, pp. 74, 89. The surrender has always been recognized by the Crown (see indorsement on Nelson's petition.) A similar presumption will be made as regards Isabella Wigle's alleged coverture, and her right to convey or appoint an attorney: Doe Wilson v. Wessells, 5 O. S. 282; Doe McDonald v. Twigg, 5 U. C. R. 167. It follows that the sale for taxes was invalid; the title was in the Crown at the time of the original sale during all the time for which the taxes were charged, and no authority to sell was therefore given by either 59 Geo. III. ch. 7, or 6 Geo. IV. ch. 7; even if the title ever was in Isabella Wigle, there were no taxes properly charged upon the lands before the surrender to and acceptance by the Crown. Enrolment of a surrender to the Crown is not necessary in this country: Regina v. Guthrie, 41 U. C. R. 148, and Hambly v. Fuller, 22 C. P. 141, but what is enrolment here? has it not been practically effected by the delivery of the old patent and deposit of the surrender in the Crown Lands Department? The Crown had been in possession from 1820 to the 21st of February, 1868, and the Statute of Limitations is a bar to this action : Viner's Abr. Bd., 4 page 176; Comyn's Digest, vol. 7, pp. 76, 77, D. 64, D. 68. The plaintiff and those through whom he claims had notice of all the facts, and therefore the plaintiff has no lien on the land, or claim against the defendant for the purchase money paid at the tax sale, or for taxes paid since, under the provisions of the 33 Vict. ch.

23.

October 13th, 1885. HAGARTY, C. J. O.-Two points must be established to support the judgment appealed from.

1. That the estate never vested in the intended grantee, Isabella Wigle.

2. That the land was not saleable for arrears of taxes, as being vested in the Crown as actual and beneficial owner. I do not see my way, with any reasonable clearness to interfere with the judgment below on the first point.

On the reason of the thing, and on the authorities, it seems settled that an estate cannot be forced upon an individual against his will.

It may, and will be assumed, in the absence of any dissent or disclaimer, that the estate has vested in the named grantee, but the principle seems established that it cannot be forced upon him, nor will the Courts enter into the question in the presence of dissent or clear refusal to accept, whether it be in its nature a burdensome or a damnosa hæreditas: Butler and Baker's Case, 3 Rep. 26b, note; Sheppard's Touchstone, 285, ch. 15.

In the absence of any authority to the contrary, I do not see why the same rules do not apply to a grant of land from the Crown.

If it be conceded that the estate vested in Isabella Wigle, it seems almost impossible to hold that a valid surrender or reconveyance of such estate was ever made to the Crown.

The authorities on that point appear in the judgment.

But, for the reasons therein stated, I do not see why the Court was not justified, under the very peculiar circumstances of the case, in holding that the estate never actually vested in the intended grantee.

I do not think that the mere use of the word "surrender" used by her in her petition that "she be allowed to surrender the patent," and the entry in the council books of the order that "the patent be surrendered," nor the deed executed by Mr. Mercer, nor the memorandum signed 20th September, 1820, by the Lieutenane-Governor representing the

Crown, indorsed on the patent, "the surrender accepted,' should force us to hold that the transaction necessarily amounted to an ineffectual surrender of an estate, thereby admitted to have been vested in the named grantee.

I think we may assume the transaction to amount in substance to a recalling and agreement to cancel the patent as never having been asked for or accepted by the grantee, and as having been issued by mistake.

The Public Lands Act of 1853, 16 Vict. ch. 159, sec. 18, expressly gives power to the Governor-in-Council to direct the cancelling of any patent that "has been or may hereafter be erroneously issued, or which shall contain any clerical error or misnomer, or wrong description," &c., &c., there being no adverse claims, to direct the issue of a correct one in its stead, to relate back to the date of the one so cancelled, and with the same legal effect as if issued at date of cancelled patent.

Sec. 19 enacts that where grants have issued, or may hereafter issue, for the same land inconsistent with each other, through error or mistake, and in all cases of sales. or appropriation of the same land inconsistent with each other, the governor may order a new grant equivalent to the land of which any grantee or purchaser may thereby be deprived, but the claims must be made within five years after discovery of the error. A somewhat similar provision appears in 4 and 5 Vict. ch. 100, sec. 25, 1841.

I merely refer to these provisions as indicative of the desire of the Legislature to extend the powers of the executive in dealing with errors.

In the early days of this Province, covering the period of these transactions, there seems to be but little legislation either restricting or enlarging the management of the public lands. In the Revised Statutes of Upper Canada, the earliest Act professing to give general directions as to management seems to be in 1838: 7 Wm. IV. ch. 118.

In the absence of direct statutable directions, we can readily understand that the old rules regulating the granting and surrendering of lands by or to the Crown were