Schiebelbein et al. v. Fischer et al., (1989) 79 Sask.R. 294 (CA)

• Judge: Cameron, Vancise and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 30, 1989
• Jurisdiction: Saskatchewan
• Citations: (1989), 79 Sask.R. 294 (CA)

Schiebelbein v. Fischer (1989), 79 Sask.R. 294 (CA)

MLB headnote and full text

Constantine Schiebelbein and George Schiebelbein (plaintiff/respondents) v. Jerome Edmund Fischer, Royal Bank of Canada, Perry Appraisals Ltd. and Thorstad, Danyluk and McAdam (defendant/appellants)

(No. 105)

Indexed As: Schiebelbein et al. v. Fischer et al.

Saskatchewan Court of Appeal

Cameron, Vancise and Sherstobitoff, JJ.A.

November 30, 1989.

Summary:

The plaintiff mortgagees held a collateral mortgage on two parcels of land, one being the mortgagor's alleged homestead. The mortgagor defaulted. The mortgagees commenced an action for foreclosure and sale of the mortgaged premises. The mortgagor and the mortgagees entered a written agreement which provided that the mortgagees would obtain a final foreclosure order against the larger parcel of land and adjourn sine die any application for foreclosure of the homestead. The mortgagees complied with the terms of the agreement. The mortgagor, in this application, applied under s. 137 of the Land Titles Act for a discharge of the mortgage on his homestead on the ground that it was satisfied by operation of law, i.e. by s. 6 of the Limitation of Civil Rights Act. Section 6 provided that "every final order of foreclosure of a mortgage on land shall operate in full satisfaction of the debt secured by the mortgage ...".

The Saskatchewan Court of Queen's Bench in a judgment reported 72 Sask.R. 46 refused to grant a discharge and dismissed the mortgagor's application. The mortgagor appealed.

The Saskatchewan Court of Appeal allowed the appeal and held that s. 6 extinguished the debt, but granted leave to both parties to reopen the matters in dispute.

Mortgages - Topic 3467

Discharge of mortgage - Discharge by operation of law - Foreclosure order - Effect of - Mortgagees held a collateral mortgage on two parcels of land, one being the mortgagor's homestead - The mortgagor defaulted - By agreement the mortgagees obtained a final foreclosure order against the larger parcel, and adjourned sine die any application for foreclosure of the homestead - The mortgagor claimed to be entitled to a discharge of the mortgage on his homestead, because of s. 6 of the Limitation of Civil Rights Act, which provided that "every final order of foreclosure ... shall operate in full satisfaction of the debt secured by the mortgage ..." - The Saskatchewan Court of Appeal held that s. 6 extinguished the entire debt and did not merely render it unenforceable - The court rejected the notion that s. 26 of the Saskatchewan Farm Security Act modified the effect of s. 6.

Mortgages - Topic 5537

Mortgage actions - Foreclosure and sale - Final or confirming order - Effect of - [See Mortgages - Topic 3467 above].

Cases Noticed:

Saskatoon Credit Union Ltd. v. Goertz, [1989] 3 W.W.R. 244, appld. [para. 13].

Battersby v. Lenhoco Enterprises Ltd. et al., [1980] 3 W.W.R. 56; 3 Sask.R. 112 (C.A.), appld. [para. 14].

Gravelbourg Savings and Credit Union Limited v. Dollard Bissonnette (1985), 43 Sask.R. 241 (Q.B.), affd. 66 Sask.R. 81 (C.A.), appld. [para. 14].

Shaunavon Credit Union Ltd. v. Dunham et al. (1985), 42 Sask.R. 283 (Q.B.), appld. [para. 14].

Bradford v. Bank of Nova Scotia (1985), 38 Sask.R. 119 (Q.B.), appld. [para. 14].

Yorkton Credit Union Limited v. Holiday Inn Ltd., [1989] Sask. D. 2768-0; 73 Sask.R. 233 (C.A.), appld. [para. 14].

Statutes Noticed:

Land Titles Act, R.S.S. 1978, c. L-5, sect. 137 [para. 21].

Limitation of Civil Rights Act, R.S.S. 1978, c. L-16, sect. 6 [para. 1]; sect. 40(1) [paras. 12, 19].

Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1, sect. 26 [para. 15].

Counsel:

Timothy Turple, for the appellant plaintiffs;

Michel Piche, for the respondent.

This case was heard on June 9, 1989, before Cameron, Vancise and Sherstobit-off, JJ.A., of the Saskatchewan Court of Appeal.

On November 30, 1989, Sherstobitoff, J.A., delivered the following judgment for the Court of Appeal: