Stephens v. Boisseau

Stephens v. Boisseau

The mortgagee's appropriation of sale proceeds with the debtor's assent did not contravene R.S.O. ch.124 s.2 and was equivalent to a sale of all mortgaged goods with lawful appropriation and set-off under s.23; therefore there was no fraudulent preference and the assignee's sole remedy was redemption prior to sale; appeal dismissed.

Citation
(1896) 26 SCR 437
Parties
Appellant/plaintiff: H.S. Stephens, Assignee of the Estate of Stephen W. Giles, Insolvent; Respondent/defendant: Edward Boisseau
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 June 1896
Procedural Posture
Appeal (civil, Contract and Insolvency Matters) / Final Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario
Outcome
Appeal dismissed with costs.
Legal Topics
Appropriation, Preference (fraudulent Preference), Set Off, Chattel Mortgage, Assignment for Benefit of Creditors, Redemption
Source Language
English
Contract Insolvency Secured Transactions Property Commercial Law Appropriation Preference (fraudulent Preference) Set Off +3 more

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Parties

H.S. Stephens, Assignee of the Estate of Stephen W. Giles, Insolvent

Appellant/plaintiff

Edward Boisseau

Respondent/defendant

Procedural Posture

Appeal (civil, Contract and Insolvency Matters) / Final Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether application of proceeds from sale of one mortgaged stock to satisfy unsecured portion constituted a fraudulent preference under R.S.O. ch.124 s.2
  2. 2 Whether mortgagee could appropriate proceeds and claim set-off under R.S.O. ch.124 s.23
  3. 3 Whether assignee had remedy to recover payments made before assignment

Ratio Decidendi

The mortgagee's appropriation of sale proceeds with the debtor's assent did not contravene R.S.O. ch.124 s.2 and was equivalent to a sale of all mortgaged goods with lawful appropriation and set-off under s.23; therefore there was no fraudulent preference and the assignee's sole remedy was redemption prior to sale; appeal dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.