Nelson et al. v. National Trust Co. et al.

Mr. HILL: What about the Official Guardian's costs? NELSON

Mr. JUSTICE KERWIN: The appeal is dismissed with et al costs. You were not an appellant, were you?

Mr. HILL: No I was respondent. In view of the position et that The Official Guardian took, I wanted to make that Kerwin J. clear.

Mr. JUSTICE KERWIN: The Official Guardian will have his costs. That may be added, if necessary.

IN THE MATTER OF The Mechanics' Lien Act, R.S.O. *Sept. 30

1950, c. 227.

*Oct.1

COUPLAND ACCEPTANCE LIMITED

. . APPELLANT; *Feb.

AND

EDWIN ALEXANDER WALSH carrying on business under the name of

RESPONDENTS. W.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO Mortgages-Mechanics' Lien-Priority-Lien registered after mortgage but before money advanced to pay off prior mortgage-Subrogation- Whether lender entitled to priority . over liens of general contractor and subcontractors-The Mechanics Lien Act, R.S.O. 1950, c. 227, ss. 13 (1), 20-The Registry Act, R.S.O. 1950, c. 336, s. 69.

Section .13(1) of The Mechanics Lien Act, R.S.O. 1950, c. 227 gives priority to the lien over all payments or advances made under a mortgage after registration of the lien. The section does not apply however, where, as here, advances are made by a third party for the purpose of paying off a prior mortgage. In such case the lender is entitled in equity to stand as against the property in the shoes of the first mortgagee and need not rely.upon the subsequent mortgage for priority. Crosbie-Hill v. Sayer [19081 1 Ch. 866; Whiteley v. Delaney [19141 A.C. 132 (applied in Gordon v. Snelgrove [19321 OR. 253) followed.

Kerwin, Rand, Kellock. Estey and Cartwright JJ.