Calvert v. Municipal Mortgage Corp., (1967) 147 N.B.R.(2d) 161 (CA)

• Judge: Ritchie, West and Limerick, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 25, 1967
• Jurisdiction: New Brunswick
• Citations: (1967), 147 N.B.R.(2d) 161 (CA)

Calvert v. Municipal Mortgage (1967), 147 N.B.R.(2d) 161 (CA);

    147 R.N.-B.(2e) 161; 375 A.P.R. 161

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Margaret Jane Calvert (plaintiff/respondent) v. Municipal Mortgage Corporation Limited (defendant/appellant)

Indexed As: Calvert v. Municipal Mortgage Corp.

New Brunswick Court of Appeal

Ritchie, West and Limerick, JJ.A.

October 25, 1967.

Summary:

A mortgagee attempted to exercise its power of sale on a mortgaged property. The mortgagor sued for a declaration that the mortgage was unenforceable because at the time of its execution the mortgagee was not licensed under the Trust Companies Licens­ing Act. The mortgagor was granted an interlocutory injunction restraining the sale of the mortgaged property pending the out­come of this action and an action by the mortgagee to recover unpaid mortgage in­stalments. The mortgagee applied to set aside the injunction.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, dismissed its application. The mortgagee appealed.

The New Brunswick Court of Appeal allowed the appeal and set aside the injunc­tion.

Editor's Note: This case is being published at this time at the recommendation of a sub­scriber.

Injunctions - Topic 6125

Particular matters - Mortgage foreclosures - Restraining power of sale - A mort­gagee applied to set aside an interlocutory injunction restraining it from selling the mortgaged property by notice of sale - The mortgagee argued that the mortgagor was required to pay into court the amount of money owing before an injunction could be granted - The New Brunswick Court of Appeal stated that "the ordinary rule is that, except on terms of the mortgagor paying into court the sum sworn by the mortgagee to be due for principal, interest and costs, the mortgagee will not be re­strained by an interlocutory injunction from selling under his power of sale" - See paragraph 10.

Injunctions - Topic 6125

Particular matters - Mortgage foreclosures - Restraining power of sale - A mortgagor sued for a declaration that the mortgage was unenforceable because at the time of its execution the mortgagee was not licensed under the Trust Companies Licensing Act - The mortgagor was granted an interlocutory injunction re­straining the sale of the mortgaged proper­ty pending the outcome of the action and an action by the mortgagee to recover unpaid mortgage instalments - The New Brunswick Court of Appeal stated that "so long as anything remains due on the mort­gage security, a mortgagee may, as a general rule, pursue all his remedies con­currently" - The court also held that the mortgagor had to endorse her writ with a claim for an injunction.

Mortgages - Topic 8101

Statutory and contractual rights - Stay of power of sale - General - [See both In­junctions - Topic 6125 ].

Cases Noticed:

Colebourne v. Colebourne (1876), 45 L.J. Ch. 749 (Ch.D.), refd to. [para. 14].

Carter v. Fey (1894), 63 L.J. Ch. 723 (C.A.), refd to. [para. 15].

Statutes Noticed:

Trust Companies Licensing Act, R.S.N.B. 1952, c. 238, generally [para. 6].

Authors and Works Noticed:

Falconbridge, Law of Mortgages, p. 659 [para. 11].

Kerr on Injunctions (6th Ed. 1927), p. 523 [para. 10].

Counsel:

Horace A. Hanson, Q.C. (counsel) and J.Y. Arseneau (solicitor), for the appellant;

Patrick A.A. Ryan (counsel) and Keith Thompson (solicitor), for the respondent.

This appeal was heard before Ritchie, West and Limerick, JJ.A., of the New Brunswick Supreme Court, Appeal Division.

Ritchie, J.A., delivered the following judgment on October 25, 1967, for the Court.