Miller v. Duggan

Miller v. Duggan

Majority held that as to the omitted five-sixths the appellants only had an unregistered agreement/equitable mortgage which, by R.S.N.S. ch.84 s.21, is void as against the respondent's registered judgment; therefore the rectification relief could not be enforced against the registered judgment creditor and the judgment of the Supreme Court of Nova Scotia was affirmed (Grindley v. Blakie approved).

Citation
(1892) 21 SCR 33
Parties
Plaintiff/appellant: William Miller; Plaintiff/appellant: Robert Miller; Defendant/respondent: Johanna Duggan; Defendant/respondent: Patrick M. Duggan; Defendant/respondent (execution Creditor): Charles Cogswell
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
4 April 1892
Procedural Posture
Civil Appeal (mortgage/priority) / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia
Outcome
Appeal dismissed; judgment of the Supreme Court of Nova Scotia affirmed
Legal Topics
Priority of Registered Judgments, Registry Statutes, Rectification of Instrument (mistake), Foreclosure and Sheriff's Sale, Execution Against Land
Source Language
English
Property Law Equity Civil Procedure Mortgage Law Statutory Interpretation Priority of Registered Judgments Registry Statutes Rectification of Instrument (mistake) +2 more

Case Brief

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Parties

William Miller

Plaintiff/appellant

Robert Miller

Plaintiff/appellant

Johanna Duggan

Defendant/respondent

Patrick M. Duggan

Defendant/respondent

Charles Cogswell

Defendant/respondent (execution Creditor)

Procedural Posture

Civil Appeal (mortgage/priority) / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia

Legal Issues

  1. 1 Whether a registered judgment under R.S.N.S. ch.84 s.21 has priority over an unregistered mortgage agreement or equitable mortgage interest
  2. 2 Whether a mortgage deed may be rectified to include omitted land against a judgment creditor who registered his judgment first
  3. 3 Proper construction of R.S.N.S. 5th ser. c.84 s.21 and its interplay with sale-under-execution statutes

Ratio Decidendi

Majority held that as to the omitted five-sixths the appellants only had an unregistered agreement/equitable mortgage which, by R.S.N.S. ch.84 s.21, is void as against the respondent's registered judgment; therefore the rectification relief could not be enforced against the registered judgment creditor and the judgment of the Supreme Court of Nova Scotia was affirmed (Grindley v. Blakie approved).

Court Disposition

Appeal dismissed; judgment of the Supreme Court of Nova Scotia affirmed

Orders

  • Appeal dismissed with costs
  • Judgment of the Supreme Court of Nova Scotia affirmed