Mortgage Corporation of Nova Scotia v. Allen

Mortgage Corporation of Nova Scotia v. Allen

The Full Court of Nova Scotia was correct to order that foreclosure proceedings advertise and sell the mortgaged property (the estate, interest and equity of redemption of the mortgagor and those claiming under him) rather than the lands simpliciter; the statutes and rules support that construction, the sheriff's deed conveys the interest ordered sold, and the Supreme Court of Canada refused special leave on the main ground while allowing a limited appeal only as to minor wording adjustments to clarify the order's effect.

Citation
[1930] SCR 16
Parties
Appellant (plaintiff): Mortgage Corporation of Nova Scotia; Respondent (defendant): Ambrose Allen
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
26 September 1929
Procedural Posture
Mortgage Foreclosure and Sale / Motion for Special Leave to Appeal to Supreme Court of Canada From Nova Scotia Full Court Judgment; Motion Heard and Disposition Made
Outcome
Motion for special leave to appeal refused on the principal ground; special leave granted limited to specified wording matters subject to terms; no order as to costs of the present motion; appellant to pursue any further appeal at its own cost.
Legal Topics
Foreclosure and Sale, Form of Order, Sale of Mortgagor's Interest Vs Land Simpliciter, Sheriff's Deed and Purchaser's Title, Priority of Incumbrancers, Practice and Procedure in Nova Scotia
Source Language
English
Property Law Mortgage Law Civil Procedure Equity Real Property Foreclosure and Sale Form of Order Sale of Mortgagor's Interest Vs Land Simpliciter +3 more

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Parties

Mortgage Corporation of Nova Scotia

Appellant (plaintiff)

Ambrose Allen

Respondent (defendant)

Procedural Posture

Mortgage Foreclosure and Sale / Motion for Special Leave to Appeal to Supreme Court of Canada From Nova Scotia Full Court Judgment; Motion Heard and Disposition Made

Legal Issues

  1. 1 Whether a foreclosure order may direct advertisement and sale of the lands simpliciter or only of the mortgagor's estate, interest and equity of redemption (the mortgaged property)
  2. 2 Whether a sheriff's deed in such sale conveys a purchaser a legal estate free of unjoined incumbrancers where rules/statute permit omission of parties
  3. 3 Whether the Supreme Court of Nova Scotia erred in settling the form of order restricting sale to mortgagor's interest

Ratio Decidendi

The Full Court of Nova Scotia was correct to order that foreclosure proceedings advertise and sell the mortgaged property (the estate, interest and equity of redemption of the mortgagor and those claiming under him) rather than the lands simpliciter; the statutes and rules support that construction, the sheriff's deed conveys the interest ordered sold, and the Supreme Court of Canada refused special leave on the main ground while allowing a limited appeal only as to minor wording adjustments to clarify the order's effect.

Court Disposition

Motion for special leave to appeal refused on the principal ground; special leave granted limited to specified wording matters subject to terms; no order as to costs of the present motion; appellant to pursue any further appeal at its own cost.

Orders

  • Special leave to appeal refused as to the main ground of appeal.
  • Special leave to appeal granted limited to specified modifications in the form and wording of the foreclosure and sale order; leave granted only on the terms that the appellant shall prosecute the appeal entirely at its own cost.