Warner v. Don

Warner v. Don

The engine was a fixture forming part of the realty as conveyed by the mortgage; such fixtures, where conveyed with the hereditament, are not "personal chattels" within the Bills of Sale Act and the mortgage did not require registration as a bill of sale, so the mortgagees' priority prevailed over the execution creditor.

Citation
(1896) 26 SCR 388
Parties
Appellant (execution Creditor): Edward Warner; Respondent (mortgagee): Patrick C. Don; Respondent (mortgagee): Charles O. Rogers
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 June 1896
Procedural Posture
Interpleader/priority Dispute on Mortgage and Execution / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia (in Banc)
Outcome
Appeal dismissed with costs
Legal Topics
Fixtures, Bills of Sale, Registration, Priority Between Mortgage and Execution Creditor, Leasehold Vs Freehold Mortgage
Source Language
English
Property Secured Transactions Commercial Law Civil Procedure Mining Law Fixtures Bills of Sale Registration +2 more

Case Brief

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Parties

Edward Warner

Appellant (execution Creditor)

Patrick C. Don

Respondent (mortgagee)

Charles O. Rogers

Respondent (mortgagee)

Procedural Posture

Interpleader/priority Dispute on Mortgage and Execution / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia (in Banc)

Legal Issues

  1. 1 Whether the horizontal engine was a "personal chattel" within the Bills of Sale Act or a fixture forming part of the realty
  2. 2 Whether the mortgage required registration as a bill of sale to be effective against an execution creditor
  3. 3 Whether a distinction exists between fixtures mortgaged by a tenant/licensee and those mortgaged by the fee owner

Ratio Decidendi

The engine was a fixture forming part of the realty as conveyed by the mortgage; such fixtures, where conveyed with the hereditament, are not "personal chattels" within the Bills of Sale Act and the mortgage did not require registration as a bill of sale, so the mortgagees' priority prevailed over the execution creditor.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs
  • Respondents entitled to the horizontal engine under their mortgage to the exclusion of the appellant's execution levy