Smith v. National Trust Co.

Smith v. National Trust Co.

The Real Property Act establishes that a registered mortgagee holds statutory powers but not a registrable estate; registered title to land under the Act cannot be extinguished by a purported sale made by a mortgagee under a contractual power where the statutory procedure (including registrar supervision under s.110 or a court order) has not been complied with; consequently a sale and subsequent conveyance executed without compliance with the Act did not divest the mortgagor’s registered title and the appeal must be dismissed.

Citation
(1912) 45 SCR 618
Parties
Appellant / Plaintiff: William J. Smith; Respondent / Defendant: The National Trust Co.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
21 March 1912
Procedural Posture
Appeal to Supreme Court of Canada From Court of Appeal for Manitoba / Final Judgment on Appeal (dismissed)
Outcome
Appeal dismissed; judgment of the Court of Appeal for Manitoba affirmed (majority). Two judges dissented.
Legal Topics
Power of Sale, Registered Title and Indefeasibility, Possession and Adverse Possession, Registrar Supervision of Sales, Priority of Interests, Construction of Real Property Act and Limitation Act
Source Language
English
Property Law Mortgages Torrens Registration (real Property / Land Titles) Equity Statutory Interpretation Limitations Power of Sale Registered Title and Indefeasibility +4 more

Case Brief

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Parties

William J. Smith

Appellant / Plaintiff

The National Trust Co.

Respondent / Defendant

Procedural Posture

Appeal to Supreme Court of Canada From Court of Appeal for Manitoba / Final Judgment on Appeal (dismissed)

Legal Issues

  1. 1 Whether a mortgagee under Manitoba's Real Property Act can, by a contractual (conventional) power of sale in a registered mortgage, divest a registered owner's title without complying with the statutory sale procedure (sections 109–110) or an order of court
  2. 2 Whether long possession by a mortgagee and persons claiming under him can, under the Real Property Act and the Real Property Limitation Act, extinguish the registered owner's title
  3. 3 Whether section 108 (rights of mortgagee at law and in equity) converts a statutory mortgagee into the legal owner for purposes of exercising a conventional power of sale independent of the Act

Ratio Decidendi

The Real Property Act establishes that a registered mortgagee holds statutory powers but not a registrable estate; registered title to land under the Act cannot be extinguished by a purported sale made by a mortgagee under a contractual power where the statutory procedure (including registrar supervision under s.110 or a court order) has not been complied with; consequently a sale and subsequent conveyance executed without compliance with the Act did not divest the mortgagor’s registered title and the appeal must be dismissed.

Court Disposition

Appeal dismissed; judgment of the Court of Appeal for Manitoba affirmed (majority). Two judges dissented.

Orders

  • Appeal dismissed with costs to respondents
  • Judgment of Court of Appeal for Manitoba (20 Man. R. 522) affirmed