Penner's Construction Ltd. v. Ancel, (1979) 2 Man.R.(2d) 197 (CA)

• Judge: Monnin, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 31, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 2 Man.R.(2d) 197 (CA)

Penner's Constr. Ltd. v. Ancel (1979), 2 Man.R.(2d) 197 (CA)

MLB headnote and full text

Penner's Construction Ltd. v. Ancel and Ancel

Indexed As: Penner's Construction Ltd. v. Ancel

Manitoba Court of Appeal

Monnin, O'Sullivan and Huband, JJ.A.

October 31, 1979.

Summary:

This headnote contains no summary.

Real Property - Topic 7845

Title - Registration of instruments - Lis pendens - Authority to file - A man, who was in financial difficulty, conveyed real property to his wife - The plaintiff creditor brought an action against the man and his wife to set aside the transfer under the Fraudulent Conveyance Act - The plaintiff filed a certificate of lis pendens pursuant to s. 87(1) of the Court of Queen's Bench Act, C.C.S.M., c. C-280, which provided for the registering in the Land Titles Office of a certificate of lis pendens as notice of "the institution of an action or the taking of a proceeding, in which any title to or interest in land is brought in question" - The wife applied for an order vacating the certificate, submitting that s. 87(1) was insufficient in itself to authorize the registration of a certificate of lis pendens - The Manitoba Court of Appeal reversed the Court of Queen's Bench and held that s. 87(1) was sufficient to authorize the registration of the certificate of lis pendens.

Cases Noticed:

Winnipeg Paint and Glass Company v. Lackman et al., [1923] 3 W.W.R. 361, dist. [para. 6].

Canadian Imperial Bank of Commerce v. Ramsay et ux, [1973] 5 W.W.R. 751, appld. [para. 10].

Foster v. Moore (1886), 11 P.R. 447, folld. [para. 29].

Brock v. Crawford (1908), 11 O.W.R. 143, consd. [para. 30].

Winnipeg Paint and Glass Company v. Lackman, [1923] 3 W.W.R. 261, dist. [para. 33].

Canadian Imperial Bank of Commerce v. Ramsay, [1973] 5 W.W.R. 751, appld. [para. 37].

Statutes Noticed:

Court of Queen's Bench Act, C.C.S.M., c. C-280, sect. 87(1) [para. 5].

Fraudulent Conveyances Act, C.C.S.M., c. F-160.

Real Property Act, C.C.S.M., c. R-30, sect. 66(1) [para. 17]; sect. 148(2) [paras. 6, 32].

Authors and Works Noticed:

Holmsted and Gale, Ontario Judicature Act, p. 308, s. 41 [para. 15].

Counsel:

R.B. King, for the plaintiff/appellant;

P.G. Saranchuk, for the defendants/respondents.

This case was heard on June 13, 1979, at Winnipeg, Manitoba, before MONNIN, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On October 31, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MONNIN, J.A. - see paragraphs 1 to 13;

O'SULLIVAN, J.A. - see paragraphs 14 to 19;

HUBAND, J.A. - see paragraphs 20 to 40.