Dépatie v. Herbert

Dépatie v. Herbert

Because a transfer of the mortgage was not served on the debtor until 9 December 1929, the transferees obtained rights only as of that date; any extinction of the debt (by payment, statutory retention/subrogation for privileged claims or compensation) that occurred before service discharged the debtor as against the...

Source-derived case information.

Citation
[1933] SCR 355
Parties
Appellant/plaintiff: Joseph Onesime Dépatie; Defendant: F. J. Herbert; Respondents (mis En Cause): Dupuy & Frères and Others
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
25 April 1933
Procedural Posture
Contract (building/mortgage) / Appeal to the Supreme Court of Canada From Court of King’s Bench, Quebec (appeal Side)
Outcome
Appeal allowed in part; judgment for appellant declaring the second mortgage extinguished and ordering its cancellation and related registrations removed.
Legal Topics
Transfer of Debt, Mortgage/hypothec, Notice to Debtor, Extinction of Debt (compensation/set Off), Parol Evidence Rule, Subrogation, Privileged Claims
Source Language
english
Contract Property Law Civil Procedure Security Interests Transfer of Debt Mortgage/hypothec Notice to Debtor Extinction of Debt (compensation/set Off) +3 more

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Parties

Joseph Onesime Dépatie

Appellant/plaintiff

F. J. Herbert

Defendant

Dupuy & Frères and Others

Respondents (mis En Cause)

Procedural Posture

Contract (building/mortgage) / Appeal to the Supreme Court of Canada From Court of King’s Bench, Quebec (appeal Side)

Legal Issues

  1. 1 Whether transferee of a mortgage acquires enforceable rights against the debtor prior to service of the transfer on the debtor
  2. 2 Whether debtor may assert extinction of the debt (by payment, privileged claim settlement or compensation) against transferee when extinction occurred before service
  3. 3 Whether evidence proving extinction of the debt between original parties contradicts or varies the written mortgage (art.1234 C.C.)

Ratio Decidendi

Because a transfer of the mortgage was not served on the debtor until 9 December 1929, the transferees obtained rights only as of that date; any extinction of the debt (by payment, statutory retention/subrogation for privileged claims or compensation) that occurred before service discharged the debtor as against the transferees. Evidence proving such extinction was admissible and did not contradict the written mortgage. The second mortgage of $4,150 was extinguished by privileged claims and payments existing prior to service; judgment accordingly ordered cancellation of the mortgage and related transfers.

Court Disposition

Appeal allowed in part; judgment for appellant declaring the second mortgage extinguished and ordering its cancellation and related registrations removed.

Orders

  • Declare that the appellant does not owe the defendant or the mis-en-cause the sum of $4,150 (the September 20, 1929 obligation)
  • Order the registrar of the County of Chambly to cancel the registration of the said obligation and the two transfers on lots 162-1824, 1825, 1826 and 1827 in the parish of St-Antoine-de-Longueuil