opinions expressed by Riddell and Fisher J.J.A. in the Appellate Division, and was of opinion that the action w ar should be dismissed as against the appellant.
NVs. T. N. Phelan K.C. for the appellant.
F. J. Hughes K.C. for the respondent.
DAOUST, LALONDE & CIE. LTEE
DAOUT,
EE}
APPELLANT;* (DEFENDANT)
......................
*Nov.10. AND
DAME ROSE A. FERLAND (PLAINTIFF) RESPONDENT; *M5 AND
NEW YORK LIFE INSURANCE CO.
(MISE-EN-CAUSE)
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Husband and wife-Life insurance policy-Wife as beneficiary-Transfer by husband and wife as security for debts of husband-Validity-Doctrine of stare decisis-Finding of fact-Art. C.C.
When a transfer by a married woman of an insurance policy on her husband's life, under which she is the beneficiary, has been found by the trial judge, which judgment was affirmed by the appellate court, to have been made as collateral security for the husband's debt, such transfer will be held to be null and void as being in contravention of the provisions of article 1301 C.C. Klock v. Chamberlin (1887) Can. S.C.R. 325; Laframboise v. Vallibres [1927] Can. S.C.R. 193; Rodrigue v. Dostie [1927] Can. S.C.R. 563; Banque Canadienne Nationale v. Carette [1931]
Can. S.C.R. 33; Banque Canadienne Nationale v. Audet [19311 Can. S.C.R. 293.
Cannon J., dubitante, as to whether the evidence had clearly established that the transfer, being absolute on its face, had been made by the wife to secure the husband's debt, and also, whether the appellant, being a creditor contracting in good faith and having paid the premiums, should not be entitled to receive the benefit of the amendment to art. 1301 C.C., enacted in 1904 by 4 Ed. VII, c. 42.
Judgment of the Court of King's Bench (Q.R. 51 K.B. 193) aff., Cannon J. dubitante.
CJ.C. and Duff, Rinfret, Smith and Cannon JJ.