Hiscock v. Stafford, Sheriff of Newfoundland, Greeley and Walsh, (1984) 46 Nfld. & P.E.I.R. 221 (NFDC)

• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 05, 1984
• Jurisdiction: Newfoundland and Labrador
• Citations: (1984), 46 Nfld. & P.E.I.R. 221 (NFDC)

Hiscock v. Stafford (1984), 46 Nfld. & P.E.I.R. 221 (NFDC);

    135 A.P.R. 221

MLB headnote and full text

Hiscock v. Stafford (defendant) Sheriff of Nfld. (applicant), Greeley and Walsh (claimants)

(1982 No. 1601)

Indexed As: Hiscock v. Stafford, Sheriff of Newfoundland, Greeley and Walsh

Newfoundland District Court

Judicial Centre of St. John's

Riche, D.C.J.

March 5, 1984.

Summary:

The defendant conveyed a lot of land to Greeley in April, 1982 but failed to register it until December, 1983. In November, 1982 the plaintiff obtained judgment against the defendant and issued a writ of fieri facias in March, 1983, directing the sheriff to sell the lot. The sheriff levied on the wrong lot by posting an attachment notice on the right lot number, but in a different phase of the subdivision. The lot was advertised and sold to Walsh. The sheriff paid the plaintiff's judgment out of the proceeds and applied by way of interpleader to determine entitlement to the balance.

The Newfoundland District Court held that the conveyance to Greeley was not fraudulent and void as against the sheriff and Walsh under s. 9 of the Registry of Deeds Act, because there was no seizure of the lot within the meaning of s. 9. Greeley was therefore entitled to be compensated by the sheriff and the plaintiff for the value of the property. The court also held that the sale by the sheriff to Walsh was valid and took priority over the sale to Greeley, notwithstanding that the attachment notice was posted on the wrong property, because there was no irregularity in the fieri facias, only in the levy made under it.

Execution - Topic 1133

Writ of fieri facias - Seizure - What constitutes - Section 9 of the Registry of Deeds Act stated that an unregistered conveyance of property was fraudulent and void as against "any creditor who shall have actually seized or levied under attachment or execution" - The Newfoundland District Court held that the seizure required must be some physical act such as posting a notice of attachment on the property - The court held that posting the notice on the wrong lot, but advertising the correct lot for sale was not sufficient to constitute seizure within the meaning of s. 9 - See paragraphs 17 to 20.

Execution - Topic 1279

Writ of fieri facias - Sale by sheriff - Irregularity in levy - Effect of - Pursuant to a writ of fieri facias, a sheriff was directed to sell a debtor's land - The sheriff mistakenly levied upon the wrong land - The correct land was advertised for sale and sold - The Newfoundland District Court held that levying upon the wrong land did not invalidate the sale, because there was no irregularity in the fi. fa. itself, the purchaser had no notice of the irregularity, and the debtor was still the registered owner of the land - See paragraph 26.

Real Property - Topic 7823

Title - Registration of instruments - Requirement of registration - Effect of failure to register - Section 9 of the Registry of Deeds Act stated that an unregistered conveyance of property was fraudulent and void as against "any creditor who shall have actually seized or levied under the attachment or execution" - The Newfoundland District Court held that where the property was not seized by a sheriff under a writ of fieri facias, the unregistered conveyance was valid as against the creditor - See paragraph 26.

Cases Noticed:

Observer Ltd. v. Gordon, [1983] W.L.R. 1008, refd to. [para. 14].

Re Bayview Estates (1980), 28 Nfld. & P.E.I.R.; 79 A.P.R. 225, refd to. [para. 15].

Merchants Bank v. Campbell, 32 U.C.C.P.R. 170, not appld. [para. 16].

Coleman v. Rawlinson, 1. F. & F. 220, dist. [para. 23].

Jeanes v. Wilkins (1748), 1 Ves. Sen. 195, refd to. [para. 26].

Doe v. Thorn, 1 M. & S. 424; 105 E.R. 157, refd to. [para. 28].

Hazen v. Hazen (1854), 8 N.B.R. 87, refd to. [para. 28].

Statutes Noticed:

Registry of Deeds Act, R.S.N. 1970, c. 328, sect. 9 [para. 14].

Authors and Works Noticed:

Halsbury's Laws of England (2nd Ed.), vol. 14, para. 91, p. 52 [para. 22].

Counsel:

Ronald Cole, for the Sheriff;

James Vavasour, for Mr. Stafford;

Barry Learmouth, for Mr. Greeley;

This application was heard before Riche, D.C.J., of the Newfoundland District Court, Judicial Centre of St. John's, who delivered the following judgment on March 5, 1984: