Does a previously unregistered mortgage have priority over a subsequently registered mortgage?
Alberta, Canada
The following excerpt is from Schaus v. Mountain Ridge Developments Inc., 2009 ABQB 94 (CanLII):
This argument is wrong in law because an earlier unregistered (equitable) mortgage does not take priority over a subsequently registered mortgage: see Jellett v. Wilkie, (1896) 26 S.C.R. 28. The general rule requires that the mortgage be acquired in good faith for value and without notice of the prior equitable mortgage. There is no evidence to support a defence argument that the exceptions apply. The equitable mortgagee can only succeed in a priority fight against other subsequent unregistered interests and writs of enforcement.
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