Judgment of the Court
DUFF C.J.-The question in substance which we are called upon to decide is whether or not the deed of the
28th of May, 1931, was in reality a sale " sous la facult6 de r6m6r6."
The learned trial judge and the majority of the Court of King's Bench have held that this instrument is not in its true character an alienation subject to the right of redemption but a pledge of immovables. That question, to quote the words of Strong, C.J., in Salvas v. "Vassal
Duffc.J. In a passage, to which the appellant in his factum refers, Mr. Justice Girouard in the same case put the question in this form:
I do not find it necessary to refer to any extraneous facts. The transaction is described in the deed as a " vente sous la facult6 de r6m6r6 ci-apris r6serv6e."
But I find it impossible to reconcile with the terms of the deed an intention to effect an irrevocable sale if the price should not be reimbursed.
On the contrary, the parties have made it very clear that, in default of reimbursement by the borrower at the date fixed, an option is vested in the appellants either to require payment of the sum lent or, at their choice, to retain the property in question as their own with full liberty to enjoy and dispose of it.
It was argued that in all material respects the deed before us does not differ from the deed in The Queen v. Montminy (2); but, as Mr. Justice Letourneau points out, there is this essential distinction: the instrument which this Court had to consider on that appeal was an instrument by which the parties in the most explicit terms provided that in the event of the failure of the borrower to repay the price on the date fixed, the right of redemption should cease to operate, and that the lender should remain "propri6taire incommutable" of the property in question. The judgments in Salvas v. Vassal (1) and in The Queen v. Montminy (2) delivered by Mr. Justice Girouard, in each case speaking for the majority of the court, make it clear that the circumstance that a lender is making use of the vente 6, rdmird in order the better to secure himself is not necessarily in itself incompatible with the validity of the transaction as such a sale. In The Queen v. Montminy (2) (p. 490) he says: