Collins v. Cunningham / Cunningham v. Drysdale

Collins v. Cunningham / Cunningham v. Drysdale

The Chief Justice properly exercised equitable discretion: the ex parte stay conditioned on payment into court and assignment to those paying was valid, necessary parties (the lessee and assignees) could be added without prejudice to defendants, and the court may order sale sequence to preserve a lessee's pro tanto rights; therefore the order of 26 December 1889 was correctly maintained and the order directing sale subject to the lessee's rights (4 January 1890) was also warranted.

Citation
(1892) 21 SCR 139
Parties
Plaintiff/appellant: Brenton H. Collins, Executor of Enos Collins, deceased; Plaintiff: Donald Keith; Plaintiff: Arthur Drysdale; Plaintiff: Arthur B. Mitchell, Executor of Joseph Seeton, deceased; Defendant/respondent: Francis W. Cunningham, Administrator; Defendant/lessee: Mary I. Sheraton
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
28 June 1892
Procedural Posture
Foreclosure of Mortgage; Sale of Mortgaged Lands / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia (full Court)
Outcome
Appeal disposed of in part: the Chief Justice's order of 26 December 1889 was upheld; the order of 4 January 1890 directing sale subject to the lessee's rights was also endorsed as proper (appeal allowed in relation to the full court's contrary decision).
Legal Topics
Foreclosure, Party Joinder, Stay of Proceedings, Priority of Incumbrances, Sale Subject to Lessee's Rights, Assignment of Mortgage
Source Language
English
Property Law Equity Civil Procedure Mortgages and Charges Foreclosure Party Joinder Stay of Proceedings Priority of Incumbrances +2 more

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Parties

Brenton H. Collins, Executor of Enos Collins, deceased

Plaintiff/appellant

Donald Keith

Plaintiff

Arthur Drysdale

Plaintiff

Arthur B. Mitchell, Executor of Joseph Seeton, deceased

Plaintiff

Francis W. Cunningham, Administrator

Defendant/respondent

Mary I. Sheraton

Defendant/lessee

Procedural Posture

Foreclosure of Mortgage; Sale of Mortgaged Lands / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia (full Court)

Legal Issues

  1. 1 Whether an ex parte order staying a sheriff sale on payment into court by a lessee/purchaser pro tanto was valid
  2. 2 Whether plaintiff could assign mortgages and lands to those who paid off the mortgage and be substituted as plaintiffs
  3. 3 Whether a court may order sale of mortgaged parcels in an order that preserves a lessee's pro tanto rights (priority of parcels)

Ratio Decidendi

The Chief Justice properly exercised equitable discretion: the ex parte stay conditioned on payment into court and assignment to those paying was valid, necessary parties (the lessee and assignees) could be added without prejudice to defendants, and the court may order sale sequence to preserve a lessee's pro tanto rights; therefore the order of 26 December 1889 was correctly maintained and the order directing sale subject to the lessee's rights (4 January 1890) was also warranted.

Court Disposition

Appeal disposed of in part: the Chief Justice's order of 26 December 1889 was upheld; the order of 4 January 1890 directing sale subject to the lessee's rights was also endorsed as proper (appeal allowed in relation to the full court's contrary decision).

Orders

  • Appeal dismissed with costs as to order of December 26, 1889 (order affirmed).
  • Appeal allowed with costs as to order of January 4, 1890 (order directing sale subject to lessee's rights reinstated).