North West Trust Co. v. West, (1989) 101 A.R. 257 (CA)

• Judge: Lieberman, Hetherington and Stratton, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 19, 1989
• Citations: (1989), 101 A.R. 257 (CA)

North West Trust v. West (1989), 101 A.R. 257 (CA)

MLB headnote and full text

North West Trust Company, formerly Heritage Savings & Trust Company (appellant/plaintiff) v. Raymond West and Alice West (respondents/defendants)

(Appeal No. 8803-0303-AC)

Indexed As: North West Trust Co. v. West

Alberta Court of Appeal

Lieberman, Hetherington and Stratton, JJ.A.

October 19, 1989.

Summary:

A creditor brought an action for a declaration of the amount owing under an equitable mortgage and, in default of payment, sought an order for foreclosure and sale.

The Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, held that the creditor did not hold an equitable mortgage. The creditor appealed.

The Alberta Court of Appeal allowed the appeal and held that an equitable mortgage was created.

Mortgages - Topic 207

Equitable mortgages - What constitute - Debtors gave the creditor a duplicate certificate of title as security for a debt - A lodgement of title agreement between the parties provided that the creditor was to hold the documents until the debt was repaid, but did not specifically charge the lands - The creditor registered a caveat based on the agreement - The Alberta Court of Appeal held that the deposit of the title deeds created an equitable mortgage; the deposit raised the inference that the debtor intended to charge the lands.

Cases Noticed:

Shaw v. Foster (1872), L.R. 5 H.L. 321, dist. [para. 7].

Ex Parte Kensington (1813), 35 E.R. 249, dist. [para. 7].

Royal Bank of Canada v. Mesa Estates, [1986] 2 W.W.R. 641 (B.C.C.A.), not folld. [para. 7].

Fialkowski v. Fialkowski & Traders Bank, [1911] 1 W.W.R. 402 (Alta. S.C.), refd to. [para. 23].

Quebec Bank v. Royal Bank (1916), 28 D.L.R. 235 (Alta. S.C.A.D.), refd to. [para. 23].

Russel v. Russel (1783), 1 Bro. C.C. 269; 28 E.R. 1121, refd to. [para. 24].

Ex Parte Whitbread (1812), 34 E.R. 496, refd to. [para. 25].

Ashton v. Dalton (1846), 63 E.R. 863, refd to. [para. 27].

Wallis & Simmonds (Builders) Ltd., Re, [1974] 1 All E.R. 561 (Ch. D.), refd to. [para. 28].

Bank of Montreal v. Stadler et al. (1984), 34 Sask.R. 34 (Q.B.), refd to. [para. 32].

Statutes Noticed:

Land Titles Act, R.S.A. 1980, c. L-5, sect. 130, sect. 189 [para. 39].

Authors and Works Noticed:

Falconbridge on Mortgages (4th Ed.), pp. 85, para. 5.5 [para. 22]; 86, para. 5.5 [para. 7].

Jowitt's Dictionary of English Law (2nd Ed.), vol. 2, pp. 1418, 1419 [para. 34].

Counsel:

R.H. Kennedy and S.J. Hammel, for the appellant;

T.S. Hunt, for the respondents.

This appeal was heard before Lieberman, Hetherington and Stratton, JJ.A., of the Alberta Court of Appeal.

On October 19, 1989, Stratton, J.A., delivered the following judgment for the Court of Appeal.