Kelly v. Imperial Loan & Investment Co., , 11 S.C.R. 516 (1885)

Supreme Court of Canada

Kelly v. Imperial Loan & Investment Co., 11 S.C.R. 516

Date: 1885-11-16

William Kelly (Plaintiff) Appellant;

and

The Imperial Loan and Investment Company of Canada (Limited) and William Damer (Defendants) Respondents.

1885: March 28; 1885: November 16.

Present: Sir W.J. Ritchie C.J. and Strong, Fournier, Henry and Taschereau J.J.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Mortgagor and mortgagee-Assignment of equity of redemption in trust-Re-conveyance by trustee-Foreclosure against trustee-Subsequent sale-Power of sale in mortgage-Exercise of by deed after foreclosure-Recitals in deed.

K. gave a mortgage of leasehold premises to the Imperial Loan and Investment Co., with a covenant authorizing the company to sell the premises on default, with or without notice to mortgagor, and either at public or private sale. The mortgage conveyed the unexpired portion of the current term, and "every renewed term" K., shortly after giving the mortgage, conveyed the equity of redemption in the mortgaged premises to one O'S. for a nominal consideration, and in trust to carry out certain negotiations for K., who then left the country and was absent for several years. During his absence, the lease of the ground mortgaged to the company expired, and was renewed in the name of O'S.

Default having been made in the payment of interest under the mortgage, a suit was brought against O'S. for foreclosure, the mortgagees having knowledge of his want of interest in the premises. Prior to such suit, O'S., fearing that such proceedings would be taken against him, had executed a deed of re-conveyance of the equity of redemption to K., but such deed was never delivered.

O'S. then filed an answer and a disclaimer of interest in such suit, but he was afterwards persuaded by the mortgagees to withdraw the same, and consent to a decree, and a final order of foreclosure was made against him. Pursuant to this order the company subsequently sold the mortgaged premises to the defendant D. for a sum less than the amount due under the mortgage; the deed to D. recit...

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