Pew v. Zinck et al

Pew v. Zinck et al

Under Nova Scotia law a purchaser at a judicial mortgage sale conducted in accordance with the court's directions acquires rights that are not defeasible merely by a mortgagor's subsequent tender; the equity of redemption is extinguished by such a sale and the court has no jurisdiction to permit redemption after the sale but before conveyance and approval when the sale was regular; the purchaser is entitled as of right to the court's approbation and delivery of conveyance.

Citation
[1953] 1 SCR 285
Parties
Appellant / Purchaser at Sheriff Sale: Alberta C. Pew; Plaintiff / Mortgagee: Harry L. Zinck; Defendant / Mortgagor / Respondent: Lobster Point Realty Corporation; Defendant / Mortgagor / Respondent: Lyttleton B. P. Gould; Defendant / Respondent: The Eastern Trust Company
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
23 February 1953
Procedural Posture
Mortgage Foreclosure and Sale; Appeal / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia in Banco
Outcome
Appeal allowed. Conveyance to appellant directed. Costs to appellant in this Court and in the Court en banc on the second motion; no costs of the first motion to Court en banc or of either application in chambers.
Legal Topics
Foreclosure and Sale, Equity of Redemption, Judicial Sale Confirmation, Sheriff Sale, Rule 8 Order 51 Judicature Act
Source Language
English
Property Mortgage Law Equity Civil Procedure Foreclosure and Sale Equity of Redemption Judicial Sale Confirmation Sheriff Sale +1 more

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Parties

Alberta C. Pew

Appellant / Purchaser at Sheriff Sale

Harry L. Zinck

Plaintiff / Mortgagee

Lobster Point Realty Corporation

Defendant / Mortgagor / Respondent

Lyttleton B. P. Gould

Defendant / Mortgagor / Respondent

The Eastern Trust Company

Defendant / Respondent

Procedural Posture

Mortgage Foreclosure and Sale; Appeal / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia in Banco

Legal Issues

  1. 1 Whether the court has jurisdiction to permit redemption after a sale under decree but before conveyance and before report approval
  2. 2 Whether a judicial sale regularly conducted extinguishes the mortgagor's equity of redemption
  3. 3 Whether Rule 8 of Order 51 (approbation of the court) leaves the sale conditional so as to permit post-sale redemption

Ratio Decidendi

Under Nova Scotia law a purchaser at a judicial mortgage sale conducted in accordance with the court's directions acquires rights that are not defeasible merely by a mortgagor's subsequent tender; the equity of redemption is extinguished by such a sale and the court has no jurisdiction to permit redemption after the sale but before conveyance and approval when the sale was regular; the purchaser is entitled as of right to the court's approbation and delivery of conveyance.

Court Disposition

Appeal allowed. Conveyance to appellant directed. Costs to appellant in this Court and in the Court en banc on the second motion; no costs of the first motion to Court en banc or of either application in chambers.

Orders

  • Appeal allowed
  • Conveyance of the lands to appellant directed in accordance with the contract made at sale