Leger v. Fournier

I can see no objection to the limits of the town being extended to the middle of the river by a provincial statute, and my judgment proceeds upon the assumption that they are effectually so extended. For the reasons already given the appeal should, in my opinion, be allowed with costs and the judgment J.of the Superior Court should be varied thus: Considering that there is error in the judgment of the Superior Court and that the assessments made and rates imposed for the years 1880 to 1883 inclusive, are illegal and void, as having been made on the railway track, and on the railway bridge crossing the river Richelieu, so far as the same are within the limits of the town of St. Johns, which being superstructure only and not " land occupied by the roadway " were not liable to be assessed and rated; and considering that the warrant to levy such illegal rates is illegal and void, order the said warrant to be quashed and enjoin the corporation to desist from all proceedings to enforce the same with costs (distraits) to the petitioners' solicitors.

Sir W. J. RITCHIE- C.J.-No question of law that I can discover arises in this case, the controversy is one of fact pure and simple. The Superior Court and the Court of Appeal are unanimous as to the result at which they have arrived on the evidence in this ouse, I?87 and I can discover nothing to justify me in saying that the conclusion at which they arrived is wrong, or that Foo.

the judgment of the Court of Appeal should be reversed or interfered with.

Ritchi. (..

STRONG J.-I entirely adopt the opinion of the court below, and for the reasons given in that court, I am of opinion that the appeal should be dismissed.

FOURNIER and HENRY JJ. concur in dismissing the appeal with costs.

TASCHEREAU J.-I am of opinion that the judgment of the Court of Appeal should be varied by ordering $302 for the three last items of his bill of claim, to be paid to appellant by respondent instead of $40. No costs in this court nor in court of appeal.

GWYNNE J. concurred with Taschereau J.

1s87

THE CONNECTICUT & PASSUMP- SIC RIVERS RAILROAD CO. (PETI- APPELLANTS; Mar. 8.

TIONERS EN NULLITA DE DECRET)......

* May 2.

JOHN L. MORRIS (ADJUDICATAIRE)......RESPONDENT. UN APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

Execution-Sale of railway shares en bloc-Arts. 595, 599 0. C. P. Where a number of shares of railway stock were seized and advertized to be sold in one lot, neither the defendant nor any one interested in the sale requesting the sheriff to sell the shares separately, and such shares were sold for an amount far in excess of the judgment debt for which the property was taken PRESENT-Sir W. J. Ritchie C. J. and Strong, Fournier, Henry and Tasehereau JJ.

J3ench for Lower Canada (appeal side) (1) reversing the n judgment of the 6uperior Court maintaining a petition en nullit de ddcret.

This was a petition en nullit de dicret by the appellants, creditors of one Barlow, defendant, to set aside a sheriffs sale of a number of shares in the Montreal, Portland, & Boston Railway Company seized as belonging to him. The seizure was made by execution issued in the suit of O'Halloran v. Barlow to levy $1,002.52, interest and costs, and 7,924 paid up shares of the par value of $100 each were seized and sold bloc to respondent for $12,010.

This sum was at once paid to the bailiff, who the same day signified to the said company the sale and adjudication of the shares, as required by law.

The petitioner prayed that the writ be declared to be null, and the secretary treasurer ordered not to transfer the shares.

In answer to the petition the respondent contended: Ist. That the sale of the shares en bloc was perfectly legal.

2nd. That the proceedings and conduct of the sale were regular and legal, and that even if there had been any irregularity, which is denied, it was waived and acquiesced in by the respondents.

Art. 599 of the P. R. enacts that no demand for the annulling or rescinding of a sale of moveables under execution can be received against a (1) L Q.

XIV.]

purchaser who has paid the price, saving in the case of or collusion.

Now here, the purchaser, Morris, has paid the price of the adjudication, and no fraud collusion is alleged by the appellant.

How could we in the face of such a clear enactment, maintain the appellants' petition to set aside this sale? It is true that art. 595 enacts that the sale must not proceed beyond the amount necessary to satisfy the debt, but if the officer conducting the sale does proceed to sell more than necessary, is that a cause of nullity as against a bond Jide purchaser ? I do not think so, nor has the appellant cited any authority to support such a contention. By art. 598 the ownership of the moveables adjudged is transferred by the adjudication. At the very moment, upon his paying the price, the purchaser is vested with the ownership of what he has bought. That is the general policy of fhe law, as regards moveable property. On this I refer to Rodibre proc~dure civile, where the author under art. 622 of the Code Napoleon, which also enacts that he should not proceed further than necessary to pay the execution debt, says, " The sale termi- "nated, the defendant or any third party cannot for "any cause trouble the purchaser, because as to moveables, possession is a title."

The only recourse (he adds,) that the defendant or third parties have, is against the officer or the execution-creditor.

Against a bond fide purchaser at a judibial sale of moveables, I take the law to be that there is no such thing as a petition to set aside the sale for the reason here invoked by the appellants.

Even, if the seizure or the sale has been utterly illegal, the purchaser is protected. Bioche, dictionnaire de procidure cites numerous authorities for that proposition.

On ne peut depouiller des adjudicataires de bonne foi, Bioche says. Appeal dismissed with costs.