Isman v. Sinnott

Parties

Procedural Posture

Appeal / Final Judgment on Appeal to the Supreme Court of Canada From the Court of Appeal for Saskatchewan

Legal Issues

1. 1 Whether foreclosure of a first mortgage and subsequent sale of the foreclosed property discharges a separate third mortgage and the collateral mortgage given to secure payment of that third mortgage
2. 2 Whether a mortgagee who forecloses under a first mortgage and sells the property can still recover on the mortgagor's covenant in a separate third mortgage
3. 3 Effect of the Land Titles Act regime (charges on land) on the independence of successive mortgages and remedies available to mortgagees

Ratio Decidendi

Because the mortgages operated as independent charges under the Land Titles Act and the respondent had a valid personal covenant in the third mortgage, foreclosure and sale under the first mortgage did not discharge the mortgagor's liability under the third mortgage or the collateral mortgage securing it; the appellant was not entitled to a discharge of the collateral mortgage until payment of the third mortgage.

Court Disposition

Appeal dismissed with costs

Orders

• Appeal dismissed with costs