Blachford v. McBain

In an action brought before the Superior Court with seizure in recaption under arts. 857 and 887 P. and art. 1624 the defendant pleaded that he had held the property (valued at over $2,000) since the expiration of his lease under some verbal agreement of sale.

The judgment appealed from, reversing the judgment of the Court of Review, held that the action ought to have been instituted in the Circuit Court.

On appeal to the Supreme Court,

Held, that as the case was originally instituted in the Superior Court and that upon the face of the proceedings the right to the possession and property of an immoveable property is involved, an appeal lies.

Supreme and Exchequer Courts Act, (b) and 28 and

.

MOTION to quash appeal for want of jurisdiction. The following is the judgment of the Registrar in Chambers upon the application on behalf of the plaintiff to give security for costs and for leave to appeal from the judgment of the Court of Queen's Bench:- "This was an application by Mr. Duclos on behalf of the plaintiff Blackford, to have the security required to be given by sec. 46 of the Supreme and Exchequer Courts Act approved and an appeal thereby allowed from a judgment of the Court of Queen's Bench for Lower Canada (Appeal side) rendered on the 22nd of September last, dismissing the plaintiff's action with costs."

:-Sir W.

" The plaintiff by his declaration, dated the 6th September, 1889, alleges in substance that he leased to the defendants a certain lot of land (describing it) for one year from the 1st May, 1888, at a rental of $138 per annum, payable monthly, in instalments of $11.50 each; that the lease terminated on the lst May, 1889, but the defendants remained in possession and continued to use and occupy said premises against his will and consent and refused to vacate said premises, although duly notified to do so; that the defendants are indebted to plaintiff in the sum of $46 for the use and occupation of the premises for the months of May, June, July and August then last past. The plaintiff prays that a writ of saisie gagerie in ejectment issue, that defendants be condemed to pay to plaintiff the said sum of with interest, that the lease shall be declared to have terminated on the 1st May, 1889, and that the defendants be condemned to give up and forthwith deliver to the plaintiff the said premises. failing. which that they may be ejected and plaintiff put in possession-the whole with costs."

" The defendant Dame Jessie McBain pleads to the action, denying that she holds the premises by virtue of the lease but under circumstances after set out; alleging that she had always been ,willing to pay for the use and occupation of the premises the sum of $46, which she brings into court and is willing the plaintiff should take upon discontinuing his action.

She then sets out at considerable length that the plaintiff on or about the 3rd May then last 'agreed to sell and did in fact bargain, sell and convey over' to one Peter McFarlane the premises in question for $2,750 upon the terms she mentions; that it was agreed between the plaintiff and said McFarlane that a regular notarial deed of sale should be drawn, and the said McFarlane thenceforth considered as proprietor of said premises; that the plaintiff and McFarlane in the presence of a notary stated the agreement and instructed him to draw a notarial deed of sale; that previous thereto, to wit the latter part of April then last, the defendant had agreed with McFarlane, that if said McFarlane should succeed in purchasing the property for anything under $2,800 she would pay him (McFarlane) for it said sum; that after the arrangement between plaintiff and McFarlane, to wit on the 3rd of May then last, the said McFarlane. after mentioning his agreement with the plaintiff, did 'agree to and in fact bargain, sell and transfer and make over to her the said defendant,' the said property upon certain terms she sets forth; that it was agreed between her and McFarlane that a regular deed of sale should be drawn the ensuing week simultaneously with the deed from plaintiff to McFarlane, and that the terms and conditions were to be the same as those between plaintiff and McFarlane save as to price ; that she paid said McFarlane $100 account of the price ; that it was agreed between her and McFarlane that she should remain in possession as proprietor; that relying upon McFarlane's promise she remained in possesion ; that when the plaintiff demanded possession on the 1st May, 1889, she notified McFarlane, who said he would hold her to her bargain, and also the plaintiff to his bargain; that on the 7th of May McFarlane through a notary put plaintiff en denteure to carry out his agreement, and notified him he would hold him responsible for the breach of it, inasmuch as he had entered into negotiations with others for its sale, meaning to refer thereby to defendant; that the said McFarlane has wholly failed to carry out his agreement with her. notwithstanding a notarial protest on her part, and the plaintiff has wholly failed to carry out his agreement with said McFarlane in fact that they are acting in concert, at the instigation of enemies of the defendant, to annoy the defendant by refusing to carry out their respective agreements; that the defendant does not hold under the lease, but under the conditions set out, which the plaintiff knew, and that the proceedings taken were only taken to annoy and harass her, for which she reserves a recourse in damages and prays acte of her tender of the $46, and the dismissal of the plaintiff's action with costs." "On the 9th of October, 1889, by consent and under reserve of all plaintiff's rights, the $46 were taken out of the court.

The case came before Mr. Justice Belanger of the Superior Court, when the defendants raised the objection that the Superior Court had no jurisdiction, inasmuch as the case came within art. 887 of the C. C. Proc., and the claim of the plaintiff was limited by his declaration to $46, by reason whereof his demand and. action came within the jurisdiction of the Circuit Court and the jurisdiction of the Superior Court was ousted.

This objection was sustained by the Superior Court but the judgment of that court was reversed by the Court of Review (Gill, Tait and Tellier JJ.) on the grounds that the principal demand of the plaintiff was to obtain possession of his immovable property, not by rescinding the lease, but because the lease had terminated, and the claim for $46 was only an accessory, and that the jurisdiction of the tribunal is determined as well by the annual value of the immovable as by the fact that it was sought to obtain possession of the immovable and that such annual value exceeding $100 the Superior Court had jurisdiction."

" This latter judgment was reversed in appeal, and the plaintiff seeks to appeal to the Supreme Court of Canada."

"Mr. Archibald Q. C. showed cause against the application and referred to article 887 of the C.C.P., Revised Statutes P.Q., p. 727, vol 2, and contended that the case did not come within section 29 of the Supreme and Exchequer Courts Act, because the question of the title to the property was not really in issue, that the plea of the defendant was clearly demurrable and could not in the form of action taken by the plaintiff be entertained; that the plaintiff ought to have brought his action in the Circuit Court, and if the Superior Court had no jurisdiction to entertain it this court had none, because the action to be appealable must originate legally in a Superior Court. He took no objection to the appeal on the ground that the judgment sought to be appealed from was not a final judgment."

" In my opinion the order for the approval of the security should go. The action, rightly or wrongly, has originated in a Superior Court; the question in controversy on the face of the pleadings (as to the validity of the defendants' plea I do not consider it necessary to express an opinion) seems to me to involve the right to the possession and property of the immovable specified in the plaintiff's declaration and the defendants' plea: the value of the property has been shown to be over $2,000, and as to whether the action was properly originated in the Superior Court or not is the question and the only question which has so far been considered by the courts, and this question I consider I should not express an opinion upon but should leave to the Supreme Court to decide. In these circumstances I think the security should be allowed.

The respondent whose duty it is to move to quash for want jurisdiction at the earliest opportunity, if he remains of the opinion that no jurisdiction exists, will be able to bring the question before the full court at its approaching session; the delay incurred will be trifling, and in the meantime he will have the benefit of the security offered by the appellant."

The respondent thereupon moved to have the appeal quashed for want of jurisdiction.

Sir W. J. C. J.-This action was brought in the Superior Court and it is quite clear that a question involving the title to lands is raised by the pleadings and therefore section 29 (b) Supreme and Exchequer Court Act applies and the court has jurisdiction.

J.-There are two distinct questions of jurisdiction involved in this case, but one only of these is raised by the present motion to quash the appeal. All we have to determine at present is whether this court has jurisdiction to entertain the appeal, assuming that the Court of Queen's Bench had jurisdiction, though it is manifest that if the appeal should proceed to a hearing the first question to be decided will be that as to the correctness of the judgment of the Court of Queen's Bench which dismissed the appeal to that court for defective jurisdiction.

Our decision of this motion must depend on whether we can hold this to be an action of which under clause 29 (b) of the Supreme and Exchequer Courts Act the Supreme Court can take cognizance.

In other words whether we can say that this action, instituted in the Superior Court for the District of Beauharnois, involved any . question " relating to the right to any fee of office, duty, payable to Her Majesty, or any title to land or Strong J. tenements, annual rents, or such like matters or things where rights in future might be bound."

The action is one of ejectment by which a landlord seeks to expel his tenant, the lease having expired. It is a personal and in no sense a real action. It has for its object to compel the tenant to perform his personal obligation, growing out of the contract of lease, to deliver up the premises to the landlord at the expiration of the term. That being so, no question of title to lands appears upon the record at all.

It is true that the tenant has pleaded an exception which the face of it is absurd and utterly untenable, setting forth some verbal agreement for the sale of the property by the landlord to a third party who has, it is pretended, verbally agreed to re-sell to the appellant, but this for obvious reasons can have no influence in conferring jurisdiction.

It is, therefore, impossible to refer the claim of the appellant to have his appeal entertained by this court to any positive enactment the statute and in default of that the appeal is entirely unwarranted.

The judgment in the court of first instance holding that the original jurisdiction was in the Circuit Court exclusively and quashing the action for that reason was reversed by the Court of Review, but restored by the Court of Appeal ; if we allow the appeal to proceed that will be the preliminary question which we shall have to decide on the hearing, but I think that question cannot arise unless the appeal is admitted, and, therefore, I forbear from expressing any opinion on it now as it would be premature to do so. Therefore, exclusively upon the ground that this court has no jurisdiction, even supposing that the Court of Queen's Bench was wrong in determining that that court had none, I am of opinion that the present lie appeal must be quashed.

FOURNIER J.-L'appelant, demandeur en cour inf6rieure, avait poursuivi les intim6s pour se faire rendre la possession d'un immeuble qu'il leur avait lou6 qu'ils d6tenaient apris 1'expiration du bail. Il r6clamait $46, valeur de 1'occupation apris l'expiration du bail, et il concluait en outre A ce que les intim6s fussent 6vinc6s de la proprit6 et A en 6tre mis en possession lui-mime.

Une premibre action prise A la cour de Circuit, dans laquelle ne fut pas soulev6e la question de juridiction, fut renvoybe A la forme. Dans la pr~sente action devant la cour Sup6rieure, il ne fat pas fait objection A la junridiction par les parties, mais la cour se d&clara d'ellemame sans juridiction sur le principe que Laction n'6tait que pour $46.

C'est devant la cour de Circuit qu'elle aurait dt ktre port~e. La coar de Revision fut unanime A renverser ce jugement.

En appel, la cour du Banc de la Reine, consid6rant qu'il n'6tait r6clam6 que $46, la cour de Circuit avait seule, et A 1'exclusion de la cour Sup6rieure, juridiction pour entendre et d6cider cette cause, cassa le jugement de la cour de Revision.

A l'appel de ce jugement devant cette cour les intim6s ont fait motion pour faire renvoyer l'appel pour d6faut de juridiction.

La premibre question A d6cider est de savoir quelle est la nature de la demande. Le but 6vident du demandeur est de rentrer en possession de son immeuble que les intimbs d6tiennent malgr6 lui depuis l'expiration du bail.

Sa demande de $46 pour la valeur de 1'occupation depuis l'expiration du bail est ind~pendante de la denande de possession de la propri6t6, tellement qu'il pouvait renoncer cette partie de sa demande, McVm. sans que ses contentions au sujet de la possession de la propri6th en fussent affect&es en aucune manibre. Fournier J

Si la demande avait t seulement pour la possession de la proprit6, dont la valeur recounue d~passe $2,000, elle tt t certainement bien port6e devant la cour Sup6rieure; comment peut-il se faire que parce qu'il demande en outre de la propri6t6 elle-m~me, la somme de $46, le montant de sa demande puisse 6tre consid&~r comme diminu6 et tomb6 dans la juridiction de la cour de Circuit.

Comme le prouve le plaidoyer des intimbs, toute la contestation entre les parties est au sujet de la possession de la propri6t0, et nullement quant aux $46 qui out t6 dtpos~es en cour et retir6es par le procureur de l'appelant. La seule question qui reste Ajuger entre les parties est celle de la propri6th de l'immeuble en question cette cause soulevee par le plaidoyer des intimes. Elle 6tait 6videmment de la juridiction de la cour Sup6rieure. Comme il est admis que la valeur de la proprith est an deld de $2,000, et que la contestation entre les parties est au snjet du titre de cette propri6t6; pour ces deux motifs la cause est appelable A cette cour en vertu des sections 24, 28 and 29 de 1'acte de la Cour Supreme. En consequence.je suis d'avis de renvoyer la motion avec d6pens.

TASCHEREAU J.-This case comes up on a motion to quash the appeal for want of jurisdiction. That motion must be refused. The jurisdiction of this court on the case is beyond controversy.

The appellant instituted an action with seizure in recaption in the Superior Court, at Beauharnois, under the lessor and lessee articles of the Code of Procedure and Article 1624 of the Civil Code, alleging that he had leased a certain property to the defendants, and that though the said lease had expired yet the defendants refused to quit the premises and continued in possession thereof.

The declaration concludes by asking that the defendants be condemned to pay $46 for their use and occupation since the expiration of the lease, and that they be ordered to give up and deliver the said premises to the plaintiff.

The defendants met -that action by a plea in which they allege in substance that at the expiration of their lease the plaintiff sold or agreed to sell the premises in question to one McFarlane, who on the same day sold the same to them, the defendants, and that they now occupy and hold the said premises, as full owners thereof.

The Superior Court, at Beauharnois, declared itself incompetent ratione miaterice upon grounds with which we have now nothing to do, and dismissed the action.

The Court of Review reversed that judgment, but the

Court of Appeal restored the Superior Court's judgment and dismissed the plaintiff's action.

From this judgment the plaintiff now appeals. Now, to ascertain whether the appeal lies or not, it is not to Articles 887 and 888 of the Code of Procedure that we haveto refer;

neither have we on this motion, in the least degree, to go into the merit of the question of jurisdiction between the Superior Court and the Circuit Court raised in the case, and upon which the appeal is taken. All we have to do, to ascertain our own jurisdiction, is to refer to section 29 of the Act under which this court sits.

Now, that section, coupled with sections 24 and 28, clearly enacts that as to the Province of Quebec, an appeal lies from all final judgments of the Court of Queen's

Bench, in actions, suits or causes originally instituted in the Superior Court wherein the matter in controversy relates to any title to lands or tenements where the rights in future might be bound.

Now, this is an VIo m. appeal from a judgment of the Court of Queen's Bench. It is in an action originally instituted in the Superior J.

Court, and the matter in controversy clearly relates to the title to this land or tenement, and the case is one where the rights of both parties in future. might be bound.

Darling v. Ryan (1); Bank of Toronto v. Le (2); Gilman v. Gilbert (3); Chagnon v. Normand The respondent contends' that the action was wrongly taken in the Superior Court, that the Circuit Court only had jurisdiction. That may be or not. We shall decide that when we come to hear the appeal. For the present it is sufficient that it is in fact instituted in the Superior Court to give us jurisdiction; and I do not see how the respondents, who asked by their plea that the appellant's claim to the possession of these premises be dismissed on the ground that the appellant has parted with the title thereto, and that they, the respondents, now are full owners thereof, can contend on their motion to quash this appeal that the matter in controversy does not relate to the title to this property, and is not one where their rights in future and the appellant's rights in future might be bound. concurred with Taschereau J.

lMotion dismissed with costs.