Thomson v. Willson

Thomson v. Willson

The deferred $1,000 was expressly postponed by agreement and, on construction of the mortgage with the incorporated agreement, the acceleration clause did not apply to that deferred sum; the mortgagee may foreclose as to the remainder but may not obtain immediate personal recovery of the deferred $1,000, and the decree must be modified to exclude that $1,000 from immediate personal judgment and to allow a stay of proceedings on payment into court of the balance.

Citation
(1915) 51 SCR 307
Parties
Appellant / Defendant: James Thomson; Respondent / Plaintiff: Priscilla Willson
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
15 March 1915
Procedural Posture
Mortgage Foreclosure (priority and Hypothecs) / Appeal to Supreme Court of Canada From the Appellate Division of the Supreme Court of Ontario
Outcome
Appeal allowed in part; judgment of the Appellate Division varied.
Legal Topics
Acceleration Clause, Deferred Payment of Principal, Partial Non Payment, Equitable Relief Against Forfeiture, Stay of Proceedings
Source Language
English
Property Law Mortgages Equity Foreclosure Priorities and Hypothecs Acceleration Clause Deferred Payment of Principal Partial Non Payment +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 4 Authorities cited 10 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

James Thomson

Appellant / Defendant

Priscilla Willson

Respondent / Plaintiff

Procedural Posture

Mortgage Foreclosure (priority and Hypothecs) / Appeal to Supreme Court of Canada From the Appellate Division of the Supreme Court of Ontario

Legal Issues

  1. 1 Does postponement of part of the principal ($1,000) prevent the mortgagee from obtaining foreclosure on default of other instalments?
  2. 2 Does the acceleration clause make the deferred $1,000 immediately due on default of any other payment?
  3. 3 Can the mortgagee obtain personal judgment including the deferred $1,000 or must recovery exclude it until the contingency is resolved?

Ratio Decidendi

The deferred $1,000 was expressly postponed by agreement and, on construction of the mortgage with the incorporated agreement, the acceleration clause did not apply to that deferred sum; the mortgagee may foreclose as to the remainder but may not obtain immediate personal recovery of the deferred $1,000, and the decree must be modified to exclude that $1,000 from immediate personal judgment and to allow a stay of proceedings on payment into court of the balance.

Court Disposition

Appeal allowed in part; judgment of the Appellate Division varied.

Orders

  • Amend the judgment by deducting $1,000 from the amount for which immediate personal recovery is ordered
  • Stay further proceedings on payment into court of the balance (sum to be fixed in minutes) and allow the deferred $1,000 to remain as security until the contingency is resolved