Schiebelbein et al. v. Fischer et al., (1988) 72 Sask.R. 46 (QB)

• Judge: Dielschneider, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 20, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 72 Sask.R. 46 (QB)

Schiebelbein v. Fischer (1988), 72 Sask.R. 46 (QB)

MLB headnote and full text

Constantine Schiebelbein and George Schiebelbein (plaintiffs) v. Jerome Edmund Fischer, Royal Bank of Canada, Perry Appraisals Ltd. and Thorstad, Danyluk and McAdam (defendants)

(No. 71 A.D. 1987)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Kerrobert

Dielschneider, J.

December 20, 1988.

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 refused to grant a discharge and dismissed the mortgagor's application.

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 home stead - 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 Queen's Bench held that s. 6 limited a collateral mortgagee's right to enforce the mortgage covenant - Where the mortgagee proceeded to final foreclosure but continued to hold title to the land, s. 6 barred totally any action on the covenant, but did not extinguish the debt - Neither did s. 6 extinguish the mortgagor's right of redemption where the mortgagee continued to hold the land - Accordingly, the mortgagor was not entitled to a discharge of mortgage by operation of law pursuant to s. 137 of the Land Titles Act - See paragraphs 8 to 49.

Mortgages - Topic 5500

Mortgage actions - Action for foreclosure and sale - General - The Saskatchewan Court of Queen's Bench held that the law of Saskatchewan relating to foreclosure of a mortgage on land was the law of England as it was introduced into the Northwest Territories and adopted in the Saskatchewan Act; that body of law continued effectively as the law of this Province except where altered by the enactment of the legislature - The court summarized the law relating to foreclosure as it stood in Saskatchewan before the enactment of the Limitation of Civil Rights Act in 1934 - The court stated that the law as summarized applied to every mortgage enforcement proceeding in Saskatchewan to which the Act did not apply - The court held that the Act was not a code replacing the prior common law and was selective in its application - The general purpose of the Act was to limit or preclude a mortgagee's right to collect a mortgage debt - See paragraphs 21, 25, 26, 29 to 31.

Mortgages - Topic 5537

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

Cases Noticed:

Industrial Development Bank v. Lees (1970), 75 W.W.R.(N.S.) 445 (Sask. C.A.), refd to. [para. 22].

Lozinski v. Mayoh (1984), 32 Sask.R. 312, refd to. [para. 23].

Orser v. Colonial Investment and Loan Company, [1917] 3 W.W.R. 513, refd to. [para. 25].

Gravelbourg Savings and Credit Union Ltd. v. Bissonette, [1988] 5 W.W.R. 54; 66 Sask.R. 81, refd to. [para. 26].

Farm Credit Corp. v. Lindberg (1988), 72 Sask.R. 43, refd to. [para. 28].

Guarantee Trust Company of Canada v. Douglas, [1982] 6 W.W.R. 178; 20 Sask.R. 1 (Q.B.), affd. 25 R.P.R. 270 (Sask. C.A.), refd to. [para. 31].

Battersby v. Lenhoco Enterprises Ltd. and Leniczek, [1980] 3 W.W.R. 55; 3 Sask.R. 112, refd to. [para. 32].

Saskatoon Credit Union Ltd. v. Goertz and Atlas Industries Ltd., [1987] 5 W.W.R. 436; 62 Sask.R. 282, refd to. [para. 34].

Lockhart v. Hardy (1846), 9 Reav. 349; 50 C.R. 378 (Rolls Ct.), refd to. [para. 43].

Moose Jaw Credit Union Ltd. v. Kjarsgaard, [1982] 3 W.W.R. 543; 18 Sask.R. 259, refd to. [para. 44].

Statutes Noticed:

Land Titles Act, R.S.S. 1978, c. L-5, sect. 137 [paras. 1, 48].

Limitation of Civil Rights Act, R.S.S. 1978, c. L-16, sect. 2 [paras. 31-32]; sect. 3, sect. 4 [para. 37]; sect. 5 [para. 34]; sect. 6 [paras. 1, 5, 20, 24, 35, 4041]; sect. 7, sect. 8, sect. 9, sect. 10, sect. 11, sect. 12, sect. 13, sect. 14 [para. 38].

Farm Security Act, S.S. 1988, c. S-17.1, generally [para. 28].

Farm Security Act, R.S.S. 1978, c. F-9, sect. 7 [para. 47].

Counsel:

G. Heinrichs (and T. Turple, as agent), for Fischer (applicant);

M. Piche, for the Schiebelbeins (respondents).

This application was heard before Dielschneider, J., of the Saskatchewan Court of Queen's Bench, whose decision was delivered on December 20, 1988.