Jameson v. London and Canadian Loan and Agency Co.

Jameson v. London and Canadian Loan and Agency Co.

The mortgage deed conveyed an express assignment of the whole lease term because the premises clause granted the 'leasehold premises' as described in the recital; the habendum's reservation 'less one day thereof' was repugnant to that express assignment and thus void, and in any event a general reservation of 'one day' does not suffice to create a sub-lease; accordingly the instrument operated as an assignment and the mortgagees were assignees liable on covenants.

Citation
(1897) 27 SCR 435
Parties
Plaintiff/appellant: Philip Jameson; Defendant/respondent: The London and Canadian Loan and Agency Company
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 May 1897
Procedural Posture
Mortgage—leasehold Premises Dispute / Appeal to Supreme Court of Canada (on Appeal From Court of Appeal for Ontario)
Outcome
Appeal allowed; judgment of trial court restored.
Legal Topics
Assignment Vs Sub Lease, Construction of Mortgage Deed, Repugnancy, Renewal Covenants, Reservation of Reversion, Interpretation of Habendum
Source Language
English
Property Law Mortgages Leases Priorities and Hypothecs Assignment Vs Sub Lease Construction of Mortgage Deed Repugnancy Renewal Covenants +2 more

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Parties

Philip Jameson

Plaintiff/appellant

The London and Canadian Loan and Agency Company

Defendant/respondent

Procedural Posture

Mortgage—leasehold Premises Dispute / Appeal to Supreme Court of Canada (on Appeal From Court of Appeal for Ontario)

Legal Issues

  1. 1 Whether the mortgage operated as an assignment of the entire lease term or as a sub-lease
  2. 2 Whether the habendum phrase 'less one day thereof' reserved a reversion to the mortgagor sufficient to create a sub-lease
  3. 3 Whether the words 'leasehold premises' in the premises clause conveyed the whole term including renewals

Ratio Decidendi

The mortgage deed conveyed an express assignment of the whole lease term because the premises clause granted the 'leasehold premises' as described in the recital; the habendum's reservation 'less one day thereof' was repugnant to that express assignment and thus void, and in any event a general reservation of 'one day' does not suffice to create a sub-lease; accordingly the instrument operated as an assignment and the mortgagees were assignees liable on covenants.

Court Disposition

Appeal allowed; judgment of trial court restored.

Orders

  • Appeal allowed with costs
  • Judgment of Mr. Justice Robertson restored