Triple Five Corporation Ltd. v. T. Eaton Co. and Mayson, (1977) 4 A.R. 222 (CA)
Judge | McDermid, Prowse and Haddad, JJ.A. |
Court | Court of Appeal (Alberta) |
Case Date | May 26, 1977 |
Citations | (1977), 4 A.R. 222 (CA) |
Triple Five Corp. v. Eaton Co. (1977), 4 A.R. 222 (CA)
MLB headnote and full text
Triple Five Corporation Ltd. v. T. Eaton Company Limited and Mayson
Indexed As: Triple Five Corporation Ltd. v. T. Eaton Co. and Mayson
Alberta Supreme Court
Appellate Division
McDermid, Prowse and Haddad, JJ.A.
May 26, 1977.
Summary:
This case arose out of a plaintiff's action against the defendants under a real estate development agreement. The plaintiff and the defendant T. Eaton Company Limited agreed to purchase and mortgage certain real estate together and that the plaintiff would make all payments on the mortgage after the down payment on the property was made by Eaton's. If the plaintiff defaulted, it was agreed that Eaton's could cure the default, provided the plaintiff was given an opportunity to reinstate its interest by payment. If the plaintiff did not reinstate itself, its interest in the property was to be automatically transferred to Eaton's. The plaintiff defaulted and Eaton's cured the default by an arrangement with the mortgagee, but the plaintiff did not reinstate itself by payment. The plaintiff filed a caveat against the property and brought an action against the defendants alleging that the arrangement with the mortgagee constituted a sham and a fraud on the plaintiff. The defendants made an application for an order discharging the caveat and lis pendens. The Alberta Supreme Court allowed the application. The plaintiff appealed.
The Alberta Court of Appeal dismissed the appeal and held that the caveat was properly discharged. The Court of Appeal held that by the operation of the agreement with Eaton's the plaintiff lost its equity of redemption.
Mortgages - Topic 4604
Redemption of mortgage - General principles - Joint mortgagors - The Alberta Court of Appeal stated that one of several joint tenants or tenants in common of the equity of redemption of a mortgage is entitled to redeem subject to accounts between himself and his co-owners - See paragraph 26.
Mortgages - Topic 4641
Redemption of mortgage - Transfer of equity of redemption - General principles - The plaintiff and defendant as co-mortgagors agreed that the plaintiff would make all payments under the mortgage - If the plaintiff defaulted, it was agreed that the defendant could cure the default, provided the plaintiff was given an opportunity to reinstate its interest by payment - If the plaintiff did not reinstate itself, its interest in the property was to be automatically transferred to the defendant - The plaintiff defaulted and the defendant cured the default, but the plaintiff did not reinstate itself by payment - The Alberta Court of Appeal discharged the plaintiff's caveat against the property and held that by the operation of the agreement with the defendant the plaintiff lost its equity of redemption - See paragraphs 6 to 28.
Practice - Topic 9016
Appeals - Restrictions on argument on appeal - Hearing of issue before trial on merits - The plaintiff appealed from an order discharging its caveat and lis pendens registered against land - The plaintiff's action had not been tried and the merits were not before the Alberta Court of Appeal, but the Court of Appeal nevertheless stated that the plaintiff's action on the merits was without foundation - See paragraphs 1 to 5 and 29 to 35.
Cases Noticed:
Adams v. Keers (1919), 46 O.L.R. 523, appld. [para. 26].
Cerny v. Canadian Industries Ltd. et al., [1972] 6 W.W.R. 38, consd. [para. 34].
Statutes Noticed:
Land Titles Act, R.S.A. 1970, c. 198, sect. 146(1) [para. 19].
Authors and Works Noticed:
Coate On Mortgages (9th Ed.), p. 716 [para. 26].
Counsel:
A.G. MacDonald, Q.C., for the plaintiff;
M.G. Stevens-Guille, for the defendant.
This case was heard before McDERMID, PROWSE and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.
On May 26, 1977, the judgment of the Appellate Division was delivered and the following opinions were filed:
McDERMID, J.A. - See paragraphs 1 to 5;
PROWSE, J.A. - See paragraphs 6 to 35;
HADDAD, J.A., dissenting in part - See paragraphs 36 to 50.
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...9]. Farm Credit Corp. v. Miller et al. (1992), 126 A.R. 335 (Q.B.), refd to. [para. 10]. Triple Five Corp. v. Eaton (T.) Co. and Mayson (1977), 4 A.R. 222 (C.A.), refd to. [para. 11]. Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307 (C.A.), folld. [para.......
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...9]. Farm Credit Corp. v. Miller et al. (1992), 126 A.R. 335 (Q.B.), refd to. [para. 10]. Triple Five Corp. v. Eaton (T.) Co. and Mayson (1977), 4 A.R. 222 (C.A.), refd to. [para. 11]. Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307 (C.A.), folld. [para.......
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Zypherus Holdings Inc. v. Dorais Estate et al., (2013) 556 A.R. 256
...of a foreclosure order in these circumstances - See paragraphs 1 to 35. Cases Noticed: Triple Five Corp. v. Eaton (T.) Co. and Mayson (1977), 4 A.R. 222 (C.A.), refd to. [paras. 16, 63]. London Loan & Savings Co. v. Meagher, [1930] S.C.R. 378; [1930] 2 D.L.R. 849, refd to. [para. 20]. H......
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