Davidson v. Davidson

Davidson v. Davidson

Because the registered owner had executed and delivered an unregistered transfer prior to registration of the judgments and s.34 (as amended) makes such an unregistered instrument operative against its maker, the judgment debtor had no interest in the land at the time of judgment registration; an execution creditor can only attach the interest the debtor had, so the registered judgments did not form a lien or charge on the land.

Citation
[1946] SCR 115
Parties
Plaintiff / Appellant: Mary Florence Davidson; Defendant / Respondent: Warren ASA Davidson; Transferee / Respondent: Minto Trading & Development Company Ltd.
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
24 January 1946
Procedural Posture
Appeal (civil) Property/land / On Appeal to the Supreme Court of Canada From the Court of Appeal for British Columbia (final Disposition)
Outcome
Appeal dismissed with costs; Court of Appeal for British Columbia judgment affirmed insofar as it set aside the order directing sale of the lands.
Legal Topics
Priority of Registered Judgments, Effect of Unregistered Transfer, Certificate of Indefeasible Title, Interpretation of Land Registry Act, Execution Act Procedure
Source Language
English
Property Law Land Registration Execution/enforcement of Judgments Priority of Registered Judgments Effect of Unregistered Transfer Certificate of Indefeasible Title Interpretation of Land Registry Act Execution Act Procedure

Case Brief

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Parties

Mary Florence Davidson

Plaintiff / Appellant

Warren ASA Davidson

Defendant / Respondent

Minto Trading & Development Company Ltd.

Transferee / Respondent

Procedural Posture

Appeal (civil) Property/land / On Appeal to the Supreme Court of Canada From the Court of Appeal for British Columbia (final Disposition)

Legal Issues

  1. 1 Whether judgments registered after an unregistered transfer attach to the land
  2. 2 Whether an unregistered transfer executed and delivered is operative against the transferor under s.34 Land Registry Act
  3. 3 What interest the judgment creditor can attach when the execution debtor has conveyed prior to registration of the transfer

Ratio Decidendi

Because the registered owner had executed and delivered an unregistered transfer prior to registration of the judgments and s.34 (as amended) makes such an unregistered instrument operative against its maker, the judgment debtor had no interest in the land at the time of judgment registration; an execution creditor can only attach the interest the debtor had, so the registered judgments did not form a lien or charge on the land.

Court Disposition

Appeal dismissed with costs; Court of Appeal for British Columbia judgment affirmed insofar as it set aside the order directing sale of the lands.

Orders

  • Appeal dismissed with costs.
  • Order of the Court of Appeal for British Columbia affirmed (Wilson J.'s order directing sale of the lands set aside).