Victor Investment Corp. Ltd. et al. v. Fidelity Trust Co.

Victor Investment Corp. Ltd. et al. v. Fidelity Trust Co.

Because the first mortgage covered two properties that were in separate hands when enforced, the proper remedy between the owners of the equities of redemption is equitable apportionment of the mortgage debt according to the respective property values; the Thiessens could not recover against Fidelity because they failed to seek marshalling against the first mortgagee, and therefore only Victor could claim damages for wrongful apportionment, measured by the difference between actual and proper apportionment values.

Citation
[1975] 1 SCR 251
Parties
Plaintiff Appellant: Victor Investment Corporation Ltd.; Plaintiff Appellant: Victor James Thiessen; Plaintiff Appellant: Margaret Thiessen; Defendant Respondent: The Fidelity Trust Company
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
2 October 1973
Procedural Posture
Mortgage Action on Appeal / On Appeal to the Supreme Court of Canada From the Court of Appeal for Manitoba
Outcome
Appeal allowed in part; judgment below varied; Victor Investment Corporation Ltd. awarded damages; appeals of Victor James Thiessen and Margaret Thiessen and Fidelity's cross-appeal dismissed.
Legal Topics
Apportionment, Marshalling, Foreclosure, Equity of Redemption, Priority of Mortgages
Source Language
English
Property Law Mortgages Equity Procedural Law Priorities and Hypothecs Apportionment Marshalling Foreclosure +2 more

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Parties

Victor Investment Corporation Ltd.

Plaintiff Appellant

Victor James Thiessen

Plaintiff Appellant

Margaret Thiessen

Plaintiff Appellant

The Fidelity Trust Company

Defendant Respondent

Procedural Posture

Mortgage Action on Appeal / On Appeal to the Supreme Court of Canada From the Court of Appeal for Manitoba

Legal Issues

  1. 1 Whether a single mortgage covering two properties in separate hands at enforcement must be apportioned between the properties
  2. 2 Whether the individual junior mortgagees (the Thiessens) had an enforceable claim against the successor first mortgagee
  3. 3 Whether the arbitrary apportionment by the first mortgagee/successor was wrongful and gave rise to damages

Ratio Decidendi

Because the first mortgage covered two properties that were in separate hands when enforced, the proper remedy between the owners of the equities of redemption is equitable apportionment of the mortgage debt according to the respective property values; the Thiessens could not recover against Fidelity because they failed to seek marshalling against the first mortgagee, and therefore only Victor could claim damages for wrongful apportionment, measured by the difference between actual and proper apportionment values.

Court Disposition

Appeal allowed in part; judgment below varied; Victor Investment Corporation Ltd. awarded damages; appeals of Victor James Thiessen and Margaret Thiessen and Fidelity's cross-appeal dismissed.

Orders

  • Allow appeal of Victor Investment Corporation Ltd. in part.
  • Vary judgment below and award Victor recovery of CAD 8627 against Fidelity Trust Company.