Cahill v. Caines, (1952) 120 Nfld. & P.E.I.R. 84 (NFSC)

JudgeDunfield, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateJanuary 23, 1952
JurisdictionNewfoundland and Labrador
Citations(1952), 120 Nfld. & P.E.I.R. 84 (NFSC)

Cahill v. Caines (1952), 120 Nfld. & P.E.I.R. 84 (NFSC);

    373 A.P.R. 84

MLB headnote and full text

John Cahill (plaintiff) v. Eric Caines (defendant)

(1952 No. 20)

Indexed As: Cahill v. Caines

Newfoundland Supreme Court

Dunfield, J.

January 23, 1952.

Summary:

Pursuant to a writ of fieri facias and a subsequent writ of venditioni exponas, a sheriff entered into a contract to sell a judg­ment debtor's equity of redemption in mort­gaged property. The purchaser questioned whether he was receiving good title. The purchase money was put in escrow. The sheriff, on behalf of the judgment creditor, sued the purchaser for an order requiring the purchaser to specifically perform his contract to purchase.

The Newfoundland Supreme Court allowed the action and ordered the purchaser to perform the contract.

Editor's note: At the request of a reader, we are including this case for publication.

Execution - Topic 1158

Writ of execution - Seizure - What prop­erty is affected - Chattels real - A writ of fieri facias and a subsequent writ of venditioni exponas authorized a sheriff to seize a judgment debtor's chattels - The debtor's only asset was a mortgaged house to which he held the equity of redemption - The sheriff contracted to sell the equity of redemption - The purchaser refused to complete the purchase, asserting that the sale was invalid - The Newfoundland Supreme Court concluded that an equity of redemption could be sold under a writ of fieri facias and that the authorization to seize chattels included land - The court ordered the purchaser to perform the con­tract of purchase.

Real Property - Topic 5

General principles - Chattels real - The Newfoundland Supreme Court discussed the history of the Newfoundland Chattels Real Act - See paragraphs 12 to 19.

Cases Noticed:

Anglo-Italian Bank v. Davies (1878), 9 Ch. D. 275 (C.A.), consd. [para. 10].

Doe d. Elmslie v. McKenzie (1852), 9 U.C.Q.B. 559 (C.A.), consd. [para. 12].

Statutes Noticed:

Chattels Real Act (Nfld.) generally [para. 12 et seq.].

Authors and Works Noticed:

Archibald, E.M., Digest of the Laws of Newfoundland (1847), p. 125 [para. 16].

Blackstone's Commentaries on the Laws of England, generally [para. 16].

Counsel:

F. O'Dea, for the plaintiff, John Cahill, Sheriff of Newfoundland;

S. Hawkins, for the defendant, Eric Caines.

This case was heard before Dunfield, J., of the Newfoundland Supreme Court, who delivered judgment on January 23, 1952.

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