Hulbert v. Peterson

of notice and that the purchaser merely replaced the mortgagor. Hodgins v. Johnston (1) is one of those cases. The other, Clarke v. Bates (2), has no application. That was a case of removal under a statute in the same terms as the Ordinance in this case, but it was decided on the ground that the goods were removed by a stranger and not by the mortgagor. Even in case of failure to renew a mortgage a purchase within the year has been held good. McMartin SEDGEWICK J.-The defendant Hulbert was mortgagee of the goods in respect of which this action was brought. The mortgage is dated the 18th April, 1902, and was registered in the office of the Registration Clerk for the Edmonton Registration District on the 28th day of April, 1902. About three months later the mortgagor removed the goods to the Calgary Registration District. Within three weeks after such removal he sold the goods in the latter Registration District to the plaintiff. About six weeks after the sale, the defendant Hulbert, hearing of the removal and sale, took the goods from the plaintiff, whereupon he brought this action for the conversion of the goods. The mortgage was never registered in the Calgary District.

The only question involved in this case therefore is: Was the plaintiff's title subject to the defendant Hulbert's mortgage?

We are all of opinion that the appeal must be allowed, because in our view the expression "subsequent purchaser" in the section just quoted means a purchaser after the expiration of the three weeks specified as the period within which the mortgagee must file his mortgage. During those three weeks he had all the rights with the common law and the Bills of Sale Ordinance secured to him, and any dealing with them by the mortgagor was in violation of or repugnant to those rights within that period and absolutely unavailing as against the mortgagee. We therefore think that the appeal should be allowed and the action dismissed, the whole with costs, the costs in the courts below to be taxed according to the proper scale.

Appeal allowed 'with co8ts. J.