Bank of Nova Scotia v. Evergreen Mobile Park Ltd. et al., (1985) 65 A.R. 227 (QB)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 01, 1985
• Citations: (1985), 65 A.R. 227 (QB)

BNS v. Evergreen Mobile Park Ltd. (1985), 65 A.R. 227 (QB)

MLB headnote and full text

Bank of Nova Scotia v. Neufeld, Evergreen Mobile Park Ltd. and Purschke (Deputy Sheriff of the Judicial District of Edmonton)

(No. 8503 16569)

Indexed As: Bank of Nova Scotia v. Evergreen Mobile Park Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Stratton, J.

October 1, 1985.

Summary:

A bank, as chattel mortgagee of a mobile home, applied for a determination of the priorities between itself and the lessor of the land on which the mobile home was located. The chattel mortgagor/tenant was in default under both the chattel mortgage and the lease. The sheriff, acting on behalf of the bank, had seized the mobile home pursuant to the chattel mortgage. Subsequently, the landlord distrained for rent and pursuant to its distress warrant instructed the sheriff to seize the same mobile home.

The Alberta Court of Queen's Bench held that the bank, as chattel mortgagee, had priority to the funds realized from the sale of the mobile home.

Landlord and Tenant - Topic 8768

Distress - Goods not liable to distress - Goods in custodia legis - The Alberta Court of Queen's Bench held that a landlord cannot distrain goods and chattels in custodia legis (in the custody or keeping of the law) i.e. in the hands of the sheriff pursuant to a prior seizure under a chattel mortgage - See paragraphs 4 to 8.

Landlord and Tenant - Topic 8823

Distress - Priorities - Re execution creditors - The Landlord and Tenant Act (Statute of Anne) 1709, 8 Anne, c. 18, gave a landlord priority for arrears of rent up to a one year maximum where a sheriff had already seized the tenant's goods under a writ of execution; the Act prohibited removal of the seized goods until the rent in arrears was paid by the execution creditor - A mobile home subject to a chattel mortgage was located on leased land - The mortgagor/tenant defaulted under both the mortgage and the lease - The Alberta Court of Queen's Bench held that the Act was inapplicable to allow the landlord to recover a year's arrears of rent, where a sheriff seized the goods on behalf of the chattel mortgagee - See paragraphs 11 to 16.

Landlord and Tenant - Topic 8824

Distress - Priorities - Re chattel mortgages - A mobile home subject to a chattel mortgage was located on leased land - The mortgagor/tenant defaulted under both the mortgage and the lease - The Alberta Court of Queen's Bench held that the chattel mortgagee, which effected a prior seizure of the chattel, had priority over the landlord to the proceeds obtained from the chattel's sale - See paragraphs 4 to 10.

Words and Phrases

Person whose title is derived ... By way of mortgage or otherwise - The Alberta Court of Queen's Bench held that this phrase, as found in s. 19(2)(a) of the Seizures Act, R.S.A. 1970, c. S-11, did not include a sheriff in constructive possession of a mobile home after seizure on behalf of a chattel mortgagee - See paragraphs 6 to 8.

Cases Noticed:

Bank of Montreal v. International Polyurethane Company Ltd. (1980), 30 A.R. 463, refd to. [para. 5].

O'Brien v. Stebbins, [1927] 2 W.W.R. 176, refd to. [para. 6].

Giles v. Grover (1832), 6 E.R. 843 (H.L.), refd to. [para. 8].

MacKenzie, In re, [1899] 2 Q.B. 566 (C.A.), refd to. [paras. 8, 12].

Honens v. International Harvester Co., [1921] 1 W.W.R. 820 (Alta. S.C.), refd to. [para. 8].

Jorgenson v. Engelstad, [1924] 1 W.W.R. 1233 (Sask. C.A.), refd to. [para. 8].

Melton Real Estate Ltd. v. National Arts Services Corporation Ltd. and Cross Arctic Transport Ltd. (1977), 6 A.R. 577; 2 Alta. L.R. 180, refd to. [para. 10].

Circa 1880 Imports Ltd. v. Antique Photo Parlour Ltd. (1983), 55 A.R. 19; 27 Alta. L.R.(2d) 397 (Q.B.), dist. [para. 12].

Hinton Realty Ltd. v. Dunn (1985), 63 A.R. 55 (Q.B.), refd to. [para. 15].

Statutes Noticed:

Statute of Anne, 1709, (Imp.), 8 Anne, c. 18 [paras. 11-16].

Seizures Act, R.S.A. 1980, c. S-11, sect. 1(d), sect. 1(g) [para. 14]; sect. 18 [para. 15]; sect. 19 [paras. 4-6]; sect. 19(1) [para. 6]; sect. 19(2)(a) [paras. 6, 8-9].

Authors and Works Noticed:

Dunlop, C.R.B., Creditor-Debtor Law in Canada, pp. 138-139 [para. 14]; 378-379 [para. 7].

Halsbury's Laws of England (4th Ed.), vol. 13, para. 201 [para. 14]; vol. 17, para. 401 [para. 14].

Counsel:

Gregory D. Reid, for the applicant;

D.L. Oliver-Dyck, for the respondents.

This application was heard before Stratton, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, whose decision was delivered at Edmonton, Alberta on October 1, 1985.