Toronto-Dominion Bank v. Dwyer, (1979) 17 A.R. 492 (DC)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 16, 1979
• Citations: (1979), 17 A.R. 492 (DC)

TD Bk. v. Dwyer (1979), 17 A.R. 492 (DC)

MLB headnote and full text

Toronto-Dominion Bank v. Dwyer

Indexed As: Toronto-Dominion Bank v. Dwyer

Alberta District Court

Judicial District of Edmonton

Bracco, D.C.J.

March 16, 1979.

Summary:

This headnote contains no summary.

Chattel Mortgages - Topic 4286

Rights of third parties - Loss of title to subsequent purchaser - Sale of mortgaged property by mercantile agent - Factors Act, R.S.A. 1970, c. 132, s. 3 - A bank took a chattel mortgage on a tent trailer as security for a loan for its purchase - The owner took the tent trailer to a dealer in tent trailers and left it for sale - The defendant, who had no actual notice of the bank's chattel mortgage, bought the tent trailer from the dealer - The bank claimed the right to security in the trailer - The defendant pleaded that he was protected by s. 3 of the Factors Act, where he purchased the trailer from a mercantile agent in the ordinary course of business - The Alberta District Court allowed the bank's action and held that the bank's security under the chattel mortgage was effective against the defendant - The District Court held that s. 3 of the Factors Act was applicable only where the mercantile agent is a party to the chattel mortgage.

Cases Noticed:

Bozsik v. Kaufmann (1963), 45 W.W.R.(N.S.) 316, appld. [para. 5].

Kozak v. Ford Motor Credit Company of Canada Limited, [1971] 3 W.W.R. 1, appld. [para. 5].

Terra Power Tractor Co. Ltd. v. Chapman (1977), 5 A.R. 286; 2 Alta. L.R.(2d) 247, appld. [para. 6].

Statutes Noticed:

Factors Act, R.S.A. 1970, c. 132, sect. 3 [para. 3].

Counsel:

N.R. St. Arnaud, for the plaintiff;

H.F.E. Mills, for the defendant.

This case was heard at Edmonton, Alberta, before BRACCO, D.C.J., of the Alberta District Court, Judicial District of Edmonton, who delivered the following judgment on March 16, 1979: