Scott v. Heninger

DAvIs J.-This appeal raises a very narrow, though rather difficult, point. Beatrice A. Raby, some years prior to becoming the tenant of the appellants, had given the respondent a chattel mortgage on her household goods and furniture. During the tenancy, the appellants made a distress for overdue rent and seized the goods found on the premises.

The respondent claimed the goods under the chattel mortgage and asserted that they were exempt from the appellants' distress for rent.

An interpleader issue between the parties was directed to be tried. The parties reside and the premises are situate in the city of Lethbridge, Alta.

Section 5 of the Alberta Distress Act, R.S.A., ch. 97, is as follows:

whose title is derived by purchase, gift, transfer or assignment from the tenant whether absolute or in trust or by way of mortgage or otherwise nor to the interest of the tenant in any goods on the premises in the possession of the tenant under a contract for purchase or by which he may or is to become the owner thereof upon performance of any condition nor where goods have been exchanged between two tenants or persons by the one borrowing or hiring from the other for the purpose of defeating the claim of or the right of distress by the landlord nor shall the restriction apply where the property is claimed by the wife, husband, daughter, son, daughter-in-law, or son-in-law of the tenant or by any other relative of his in case such other relative lives on the premises as a member of the tenant's family.

The respondent's chattel mortgage having come into existence before Beatrice A. Raby became the tenant of the appellants, the sole question for decision is whether or not the goods and chattels covered by the mortgage were subject to the appellants' distress for rent. At common law, goods were liable to be distrained for rent in respect of their locality, that is by reason of their being on the demised premises, and not in respect of their ownership; and the goods of a stranger to the tenancy might be distrained on as well as the tenant's own goods. But the English law became so altered by the Law of Distress Amendment Act, 1908, that it may be said that the goods of any other person than the tenant cannot now be distrained on unless they are exempt from the protection given by that Act or otherwise by law. The Alberta statute provides that a landlord shall not distrain for rent on the goods and chattels the property of any person except the tenant or person who is liable for the rent although the same are found on the premises, but certain exceptions are made to this general restriction.

One of these exceptions is that the restriction shall not apply in favour of any person whose title is derived by purchase, gift, transfer or assignment from the tenant whether absolute or in trust or by way of mortgage or otherwise.

The point in issue is whether in order to come within this exception the mortgage must have been made while the mortgagor was the tenant of the landlord or whether the exception applies irrespective of the time of the making of the mortgage. The exception is " of any person whose title is derived

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*." Is it necessary that the mortgage be made during the term of the tenancy?

Lunney, J., of the Supreme Court of Alberta, on the trial of the issue held in favour of the appellants DJ. (landlords).

Upon appeal, the Appellate Division of that Court (1) (Clarke, J. dissenting), took the opposite view and accordingly gave judgment in favour of the respondent (chattel mortgagee).

The Appellate Division gave special leave to the appellants to appeal to this Court. The English statute, the Law of Distress Amendment Act, 1908, 8 Edw. VII, c. 53, s. 4, provides that the Act shall not apply

There appears to be no case under the English statute that has raised the point with which we have to deal, but I find in the last edition of Woodfall's Landlord and Tenant (23rd ed., 1934) at p. 581, in discussing the exception in respect of "goods comprised in any bill of sale" the following comment in foot-note (o),

In my opinion it is too narrow a view of the statute to draw a distinction between a chattel mortgage made before and one made after the commencement of the tenancy. The words of the exception must be considered with relation to the principal matter. The intention of the legislature obviously was to protect the landlord from claims against the goods on the premises that might be made by the different classes of persons enumerated in the section, and to give to the landlord in respect of his rent a priority over such claims.

I can find nothing in the language of the section to support the view that the only mortgage in contemplation of the legislature was a mortgage made after the commencement of the tenancy. It would have been easy to have so said if that had been in the mind of the legislature. In Hackney Furnishing Co. v. Watts (2), Bray, J., in considering whether the goods distrained on were comprised in a hire-purchase agreement within the meaning of s. 4 of the Law of Distress Amendment Act, 1908, said, at p. 232:

S.C.R.]