Yockney v. Thompson

DUFF J.-The question on this appeal is whether a contract made by an owner of land in Manitoba, registered under the "new system," by which, for valuable consideration, he agrees to execute a mortgage on the land in favour of another will support a valid caveat under section 130 of the Manitoba "Real Property Act."

That section is as follows:

The appellant contends that the beneficiary of such a contract, claiming to enforce his right to have a mortgage executed in accordance with it, is not a person claiming "an estate or interest in land" within this section.

He puts his argument in this way:-The mortgage when executed would not, he says, operate as a transfer of "any estate or interest" in the land and, consequently, a claim to compel the execution of a mortgage is not a claim to any such "estate or interest."

This argument is based upon section 100 the Act, which reads as follows:- I think the contention should be rejected. The effect of section 100 was fully considered in Smith The National Trust Co. (1).

It was there pointed out DuffJ.

that, as regards land registered under the new system, title is consummated by registration and that the effect of section 100 is that the holder of a "mortgage or incumbrance" registered under the Act has not vested in him, in whole or in part, the registered title. The execution and registration of the mortgage, in a word, does not immediately effect any dismemberment of the mortgagor's registered title. In that sense the mortgagee has no estate or interest in the land. I entirely agree, however, with the learned trial judge, that it is something very much like a contradiction in terms to say that a mortgagee, having the powers of sale and foreclosure vested in him by the statute together with other rights as to the possession of the land which the statute gives him, has not, in the broader sense of the words, an interest in the mortgaged land. I do not think section 130 can properly be limited to those cases in which the claim is a claim to -be registered as possessor in whole or in part of the registered title. In other words, I do not think it can be properly limited to those cases in which an "interest" is claimed in the restricted sense in which "interest" is used in section 100.

I think the respondent is within the section. J.-For the reasons which he assigns, I respectfully concur in the conclusion of Mathers .J., affirmed by the Court of Appeal, that the plaintiff had, under his agreement, an interest in lot 38 within the purview of section 130 of the Manitoba "Real Property Act."

Though not as clear or precise in its designation of the nature and extent of the plaintiff's interest J as might be desired, the caveat lodged by him. states the date of the agreement under which he claims and the parties to it.

It also gives the name and address of a firm of solicitors representing him for the service of notices, etc.

Its sufficiency for the purposes of the "Real Property Act" was presumably passed upon by the registrar before it was accepted and filed.

The registration of the defendant's mortgage is expressly made subject to the caveat. Having regard to all these facts, I am not prepared to reverse the concurrent judgment of the two provincial courts which held it to be sufficient.

I would dismiss the appeal with costs.

J.-I agree that this appeal should be dismissed with costs.

Appeal dismissed with costs.