Indexed as:
  Der Bach v. Mueller

Between
Leo William Der Bach, Petitioner, and
Randolph Robert John Mueller, Frank Iaci, Barbara Josepha
Andrea Mayr, Respondents

New Westminster Registry No. C851880

[1986] B.C.J. No. 2307

British Columbia Supreme Court
New Westminster, British Columbia
(In Chambers)
Hyde L.J.S.C.

Heard: December 10, 1985
Judgment: January 27, 1986

Counsel for the Applicant:  Eugene Lesyk, Esq.
Counsel for the Respondents:   Gordon M. Elliott, Esq.

   HYDE L.J.S.C.:— The Respondent, Frank Iaci, commenced foreclosure proceedings in action number C821906 in this Registry on August 13, 1982, his mortgage being a second mortgage subject to a prior mortgage in favour of Co-Operative Trust Company of Canada. This foreclosure proceeded to Order Nisi on September 28, 1982, and Iaci took personal judgment pursuant to that Order on that date against Der Bach in the amount of $74,262.20 and costs. That judgment was assigned by Iaci to Mayr on November 14, 1984, and by Mayr to Mueller on November 16, 1984.

   In a separate action, Vancouver Registry No. H821346, Co-Operative Trust Company of Canada commenced foreclosure proceedings on the first mortgage which proceedings were assigned to laci in consideration of the payment by Iaci to Co-operative Trust of the sum of $81,589.80 on August 24, 1983. This proceeding, with Iaci substituted as Petitioner, proceeded to Order Absolute on September 19, 1983, giving Iaci title to the property.

   Der Bach now petitions the Court for a declaration that the judgment in action No. C821906 merged when Iaci took title to the property in action No. H821346. Alternatively, Der Bach seeks a declaration that the payment of $3,500 by Mayr to Iaci as consideration for the assignment of judgment on November 14, 1984, satisfied the Iaci judgment; or in the further alternative, that Der Bach's liability under that judgment is one-third of the amount paid by Mayr.

   I have considered the authorities and statutes cited by counsel concerning merger of the relief obtained by Iaci in the two separate proceedings. I am persuade-d that Iaci was entitled to each of the Orders, i.e. personal judgment on the one and title to the property on the other, and that there was no intention on his part to merge the one into the other; nor was merger effected by operation of law.

   I am satisfied that the payment by Mayr to Iaci of $3,500 for the assignment of judgment on November 14, 1984, did not extinguish the personal judgment, nor did it limit Der Bach's liability to one-third of the $3,500 paid by Mayr.

   The petition is dismissed with one set of costs on a party and party basis to the Respondents.

HYDE L.J.S.C.