Canadian Imperial Bank of Commerce v. Robertshaw, (1985) 61 A.R. 192 (CA)

• Judge: Prowse, Belzil and Irving, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 18, 1985
• Citations: (1985), 61 A.R. 192 (CA)

CIBC v. Robertshaw (1985), 61 A.R. 192 (CA)

MLB headnote and full text

Canadian Imperial Bank of Commerce v. Robertshaw

(Appeal No. 16766)

Indexed As: Canadian Imperial Bank of Commerce v. Robertshaw

Alberta Court of Appeal

Prowse, Belzil and Irving, JJ.A.

April 18, 1985.

Summary:

A father co-signed a promissory note for his son to secure a loan to the son by a bank. Subsequently, the son borrowed more money and gave an equitable mortgage as security. When the son defaulted on the loans, the bank brought an action against the father on his note. The father pleaded that the action was barred under s. 41(1)(a) of the Law of Property Act, claiming that the bank's remedy was limited to the land secured by the mortgage. The Alberta Court of Queen's Bench allowed the action and held that s. 41(1)(a) was inapplicable - see 54 A.R. 315. The father appealed.

The Alberta Court of Appeal dismissed the appeal.

Mortgages - Topic 5405

Mortgage actions - Action on the covenant - Prohibition against - Law of Property Act, s. 41(1)(a) - A father co-signed a promissory note with his son to secure a loan by a bank to the son - Subsequently, the son borrowed more money and gave an equitable mortgage as security - When the bank brought an action against the father on his note, the father pleaded that the action was barred under s. 41(1)(a) of the Law of Property Act, claiming that the bank's remedy was limited to the lands secured by the mortgage - The Alberta Court of Appeal affirmed that s. 41(1)(a) was inapplicable in the circumstances.

Mortgages - Topic 3842

Merger - Circumstances when doctrine applicable - A borrower jointly signed a promissory note and subsequently the other borrower gave the lender an equitable mortgage as security - Upon default the lender sued on the note and also commenced a foreclosure action - The Alberta Court of Appeal held that the doctrine of merger did not apply so as to merge the note and the mortgage (see paragraphs 7 and 8).

Cases Noticed:

Wainwright Savings & Credit Union v. Fuder (1976), 1 A.L.R.(2d) 188, ref'd to. [para. 8].

Clayborn Investments v. Wiegert (1977), 5 A.R. 50, dist. [para. 10].

Counsel:

J.L. Straith, for the appellant;

N.T. Demeza, for the respondent.

This appeal was heard by Prowse, Belzil and Irving, JJ.A., of the Alberta Court of Appeal. The decision of the Court of Appeal was delivered from the bench by Belzil, J.A., on April 18, 1985.