Ellard v. Millar

Ellard v. Millar

The Court held that the prior judgment implicitly determined the true annuity at $2,000 (res judicata) and thus the appellant was liable for arrears; because salary, annuity and other transactions were intermingled the proper remedy for the administration period was an action to account, but the appellant must pay the acknowledged sum of $1,733.35 and the annuities due after that date totalling $5,548, producing a total award of $7,281.35; the draft deed must reflect an annuity of $2,000 and the respondent's hypothec was validly limited as stipulated; cross-appeal dismissed.

Citation
[1930] SCR 319
Parties
Appellant/defendant: Herbert Millar Ellard; Respondent/plaintiff: Dame Ellen Millar
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
9 December 1929
Procedural Posture
Civil Appeal (property/annuity/account) / Appeal and Cross Appeal to Supreme Court of Canada From Court of King’s Bench, Quebec (final Judgment)
Outcome
Appeal allowed in part; cross-appeal dismissed
Legal Topics
Res Judicata, Promise of Sale, Annuity (life Rent), Action to Account, Prescription (statute of Limitations), Hypothec/privilege, Power of Attorney, Interpretation of Dispositif
Source Language
English
Civil Procedure Property Law Contract Law Succession Law Obligations/accounting Res Judicata Promise of Sale Annuity (life Rent) +5 more

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Parties

Herbert Millar Ellard

Appellant/defendant

Dame Ellen Millar

Respondent/plaintiff

Procedural Posture

Civil Appeal (property/annuity/account) / Appeal and Cross Appeal to Supreme Court of Canada From Court of King’s Bench, Quebec (final Judgment)

Legal Issues

  1. 1 Whether prior judgment constituted res judicata as to the amount of the annuity
  2. 2 Whether the proper remedy was a specific claim for a single item or an action to account for intertwined transactions
  3. 3 Whether revocation of power of attorney affected the annuity obligation

Ratio Decidendi

The Court held that the prior judgment implicitly determined the true annuity at $2,000 (res judicata) and thus the appellant was liable for arrears; because salary, annuity and other transactions were intermingled the proper remedy for the administration period was an action to account, but the appellant must pay the acknowledged sum of $1,733.35 and the annuities due after that date totalling $5,548, producing a total award of $7,281.35; the draft deed must reflect an annuity of $2,000 and the respondent's hypothec was validly limited as stipulated; cross-appeal dismissed.

Court Disposition

Appeal allowed in part; cross-appeal dismissed