Scott v. The Bank of New Brunswick

a JOHANNA

DUGGAN,

PATRICK

*April 4 M. DUGGAN,

AND

CHARLES

RESPONDENTS. COGSWELL (DEFENDANTS)...........

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. .

Priority-Mortgage-Rectification of mistake.

By R. S. N. S. 5th ser. c. 84, s. 21, a registered judgment binds the lands of the judgment debtor, whether acquired before or after such registry, as effectually as a mortgage; and deeds or mortgages of such lands, duly executed but not registered, are void against the judgment creditor who first registers his judgment.

A mortgage of land was made, by mistake and inadvertence, for onesixth of the mortgagor's interest instead of the whole. The mortgage was foreclosed and the land sold.

Before the foreclosure judgment was registered against the mortgagor and two years after an execution was issued and an attempt made to levy on the five-sixths of the land not included in said mortgage. In an action for rectification of the mortgage and an injunction to restrain the judgment creditor from so levying.

Held,-atfirming the judgment of the court below, Strong and Patterson JJ. dissenting, that as to the said five-sixths of the land the plaintiff had only an unregistered agreement for a mortgage which, by the statute, was void as against the registered judgment of the creditor. Grindley v. Blakie (19 N. S. Rep. 27), approved and followed. APPEAL from a decision of the Supreme Court of Nova Scotia affirming the judgment at the trial in favour of the defendant.

On the 1st day of September, 1878, the respondent, Johanna Duggan, executed to the appellants two mortgages to secure the sum of $20,000, which was then due and owing by her to them. The time for payment :-Sir W.