How have the courts dealt with the issue of who is found to be a trustee or a fiduciary?

OSLER, J.A.—In Grace v. MacDermott, 13 Gr. 247, the case was that the defendant and a number of other persons being interested in certain lands, the title to which was defective on a ground common to all of them, the defendant procured a deed thereof to be made to himself by the original owner upon the express representation and understanding and under the belief on her part that such deed was to enure to the benefit of and confirm the title of all parties who claimed under her first deed. The defendant afterwards asserted that he was entitled absolutely to the whole of the land, but was declared to be a trustee for the benefit of all persons interested on the ground that he could not set up the deed in fraud of the express purpose for which it had been made.

In Kelly v. Macklem, 14 Gr. 29, the defendant being a mortgagee of land which had been sold for taxes subsequent to the mortgage, bought it from the tax purchaser representing that he was interested in the land as mortgagee, putting that forward as a ground for being allowed to buy, and using the word “redemption” in speaking of his purchase. He was held to be precluded from setting up against the mortgagor a title as absolute purchaser, because having purchased as mortgagee, and having made his interest in the land as such a ground for being allowed to buy he could not set up a right to hold as if he had purchased from a stranger.