Melfort Credit Union Ltd. v. Wall et al., (1993) 114 Sask.R. 40 (QB)

• Judge: Grotsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 09, 1993
• Jurisdiction: Saskatchewan
• Citations: (1993), 114 Sask.R. 40 (QB)

Melfort Credit Union Ltd. v. Wall (1993), 114 Sask.R. 40 (QB)

MLB headnote and full text

Melfort Credit Union Limited (plaintiff) v. Russell Joseph Wall and Ellen Terry Wall (also known as Ellen Terry Porter and also known as Ellen Terry Skene), Elva Wall, John McCormick and Agricultural Credit Corporation of Saskatchewan (defendants)

(1990 Q.B. No. 405)

Indexed As: Melfort Credit Union Ltd. v. Wall et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Melfort

Grotsky, J.

August 9, 1993.

Summary:

A mortgagee applied for a final order for foreclosure and immediate possession of the mortgaged lands.

The Saskatchewan Court of Queen's Bench allowed the application but the order was stayed for as long as the mortgaged lands continued to be homestead.

Estoppel - Topic 1281

Estoppel by conduct - Mutual mistake - A mortgagor executed an affidavit that mis­takenly stated that no portion of the mort­gaged lands were homestead - The lands were in fact homestead and could not be subject to a final order of foreclosure - The mort­gagee claimed the mortgagor was estopped from asserting the lands were homestead - The Saskatchewan Court of Queen's Bench held that the mortgagee did not act soley upon the representation in the affidavit but acted as much on the branch manager's understanding of the character of the mortgaged land, therefore, estoppel did not apply - See paragraphs 30 to 56.

Mortgages - Topic 7742

Mortgagee's remedies - Statutory suspen­sion - Farmland security legislation - Scope of suspension - A mortgagee applied for a final order for fore­closure - The mort­gagor, Russell Wall, executed an affidavit that mistakenly stated that no portion of the mortgaged lands were homestead - The lands were in fact home­stead and could not be subject to a final order of foreclosure - The Saskatchewan Court of Queen's Bench stated that it could not avoid the clear intention of the Saskatchewan Farm Security Act and granted the foreclosure order but stayed it for as long as the mortgaged lands remained homestead - See paragraphs 57 to 68.

Cases Noticed:

Watson Credit Union v. Pastl, [1991] 4 W.W.R. 539; 94 Sask.R. 74 (Q.B.), dist. [para. 24].

Meduk v. Soja, [1958] S.C.R. 167, refd to. [para. 32].

Regina Sticks Ltd. v. Saskatchewan Gov­ernment Insurance (1993), 113 Sask.R. 40; 52 W.A.C. 40 (C.A.), refd to. [para. 32].

Centurion Investments Ltd. v. N.M. Skalbania Ltd. (1981), 12 Sask.R. 79 (Q.B.), affd. (1983) 22 Sask.R. 241 (C.A.), consd. [para. 35].

Bell v. Lever Bros., [1932] A.C. 161, consd. [para. 35].

Solle v. Butcher, [1950] 1 K.B. 671, consd. [para. 35].

Magee v. Pennine Insurance Co., [1969] 2 Q.B. 507 (C.A.), consd. [para. 35].

Hulowski v. Hulowski, [1945] 3 W.W.R. 140 (Sask. K.B.), affd. [1945] 3 W.W.R. 753 (Sask C.A.), consd. [para. 35].

Greenwood v. Martins Bank, [1933] A.C. 51; 101 L.J.K.B. 622, consd. [para. 35].

Codville Co. v. Haygarth (1909), 10 W.L.R. 35 (Sask. T.D.), consd. [para. 35].

White v. Kirkman et al., [1923] 3 W.W.R. 254 (Sask. K.B.), consd. [para. 35].

Klinck v. Greer (1910), 14 W.L.R. 282 (Sask. T.D.), consd. [para. 35].

McCance v. London and North Western Railway Co., [1861] 7 H. & N. 477, dist. [para. 49].

In re Duke of Marlborough; Davis v. Whitehead, [1894] 2 Ch. 133; 63 L.J.Ch. 471, refd to. [para. 62].

Statutes Noticed:

Saskatchewan Farm Security Act, S.S. 1988-1989, c. S-17.1, sect. 2(1)(h), sect. 44(1), sect. 44(2), sect. 44(4) [para. 27].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract (2nd Ed.), pp. 240, 241 [para. 37]; 242 [para. 38].

Halsbury's Laws of England (3rd Ed.), vol. 11, p. 169 [para. 31]; vol. 13, p. 75 [para. 62].

Counsel:

D.M. Hrenyk, for the plaintiff;

D.M. Dynna, for the defendant, Russell Joseph Wall;

G. Carson, for the defendant, Ellen Terry Wall.

This application was heard by Grotsky, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melfort, who delivered the following decision on August 9, 1993.