Cream et al. v. Davidson

LOUIS alias WILFRID DUROCHER

(PLAINTIFF) ................................

*Mar. 1. AND

*May 1. LOUIS DUROCHER (DEFENDANT)........RESPONDENT. ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).

A will, in favour of the husband of the testatrix, was set aside in an action by the heir at law and declared by the judgment to be un acte faux, and therefore to be null and of no effect.

In a subsequent petitory action between the same parties:

, that the judgment declaring the will faux was not evidence of admission of the title of the heir at law by reason of anything the devisee had done in respect of the will, first, because, the will having been annulled was for all purposes unavailable, and, secondly, because the declaration offaux, contained in the judgment, did not show any such admission. The constructive admission of a fact resulting from a default to answer interrogatories upon articulated facts recorded under art. 225 C. C. P., cannot be invoked as a judicial admission in a subsequent action of a different nature between the same parties.

Statements entered upon cadastral plans and official books of reference made by public officials and filed in the lands registration offices, in virtue of the provisions of the Civil Code of Lower Canada, do not in any way bind persons who were not cognizant thereof at the time the entries were made.

Where a deed entered into by the parties to a suit in order to effect a compromise of family disputes and prevent litigation failed to attain its end, and was annulled and set aside by order of the court as being in contravention of Article 311 of the Civil Code of Lower Canada, no allegation contained in the deed so annulled could subsist even as an admission.

:-Sir Henry Strong C.J. and Gwynne, Sedgewick, King and Girouard JJ.

36a.