Black v. Hiebert

Black v. Hiebert

The mortgage clause did not authorize the mortgagee or its solicitors to make the contested advances to contractors or material suppliers without the mortgagor's express order; Exhibit 7 was not established as valid; the payment to the lumber company was a sham transaction and could not be treated as discharging liens or added to the mortgage debt; assignees are limited to ordinary redemption suit costs; accordingly the advances and costs claimed were disallowed and the mortgagor was let in to redeem.

Citation
(1907) 38 SCR 557
Parties
Appellant/plaintiff: Alexander Black; Respondent/defendant/mortgagor: Kate Hiebert
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
7 May 1907
Procedural Posture
Mortgage Redemption Action / Appeal to the Supreme Court of Canada From the Court of King’s Bench for Manitoba
Outcome
Appeal dismissed with costs; judgment below varied to allow redemption and to disallow the contested advances and improper costs
Legal Topics
Redemption, Mechanic's Lien, Lien for Materials, Assignment of Mortgage, Fraudulent Transactions, Costs
Source Language
English
Priorities and Hypothecs Mortgage Law Property Law Equity Redemption Mechanic's Lien Lien for Materials Assignment of Mortgage +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 5 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Alexander Black

Appellant/plaintiff

Kate Hiebert

Respondent/defendant/mortgagor

Procedural Posture

Mortgage Redemption Action / Appeal to the Supreme Court of Canada From the Court of King’s Bench for Manitoba

Legal Issues

  1. 1 Whether mortgage clause authorized advances to contractors or material suppliers without the mortgagor's express order
  2. 2 Whether the purported order signed by an illiterate mortgagor without witness (Exhibit 7) was valid
  3. 3 Whether payment to the lumber company could be treated as payment of a mechanics' lien and thus chargeable to the mortgage

Ratio Decidendi

The mortgage clause did not authorize the mortgagee or its solicitors to make the contested advances to contractors or material suppliers without the mortgagor's express order; Exhibit 7 was not established as valid; the payment to the lumber company was a sham transaction and could not be treated as discharging liens or added to the mortgage debt; assignees are limited to ordinary redemption suit costs; accordingly the advances and costs claimed were disallowed and the mortgagor was let in to redeem.

Court Disposition

Appeal dismissed with costs; judgment below varied to allow redemption and to disallow the contested advances and improper costs

Orders

  • Appeal dismissed with costs to the respondent
  • Vary judgment below to declare that costs and charges beyond those of an ordinary redemption suit consented to by a mortgagee do not form part of the mortgage debt