Bench for Lower Canada (appeal side) (1) reversing the judgment of the Court of Review at Montreal (2), and restoring the decision of the Superior Court, district of Montreal which dismissed the plaintiff's action with costs.
The plaintiff brought a petitory action against his father and former tutor, the present respondent, to recover from him his share, as an heir at law of his mother, in certain real property in Montreal alleged to have formed part of her estate. The evidence shewed that there was apparently no existing title to the land, and no title deeds on file in the registry office. The plaintiff's mother was entered as proprietor of the lots in question on the official plan and book of reference deposited in the registry office, under the provisions of the Civil Code in 1871, the only other entries affecting the property being two notices of renewal of registration ofjudgments against a supposed former owner. The defendant denied that his deceased wife, plaintiff's mother, ever had any title and claimed that the lots had been purchased by him thirty years previously with his own money and had ever since then remained in his possession as owner, that he was assessed for the property on the city valuation rolls and had paid the taxes on them ever since 1868. The mother died on 24th November, 1874, and shortly afterwards the respondent caused to be probated an alleged will said to have been made by the deceased, very irregular in form and bearing upon its face evidence of having been made by the respondent himself. By this will all the property of the testatrix, including the lands in question in this cause, were devised to her husband, the respondent.
On 19th May, respondent was appointed tutor to his three children.
On 28th February, 1889, the appellant and respondent became parties to a deed in which it was declared that the appellant had a right as heir of his deceased mother to certain properties, including that now in dispute, which were then clear of all incumbrances and that his father, the respondent, had rendered full and satisfactory accounts of his administration as tutor. The deed then recited that the parties desired to put an end to all trouble, preserve amicable relations within the family and avoid litigation and, in consideration of the premises and a payment of $800 by the respondent,.the appellant sold, granted and transferred all his rights and claims in and to the property as heir or otherwise to the respondent.
In an action brought by appellant in 1893 to set aside this deed defendant failed to appear, and it was annulled by the Superior Court as being a settlement between a minor, become of age, and his tutor, relating to his administration, without the rendering of accounts in detail and delivery of vouchers as required by art. 311 C. C.
In January, 1894, an action was brought by appellant in the Superior Court, at Montreal, in which it was alleged that the pretended will was made by respondent himself ; that the alleged testatrix could not write; and praying that said will should be declared to be a forged or simulated document which had never been either dictated or signed by the pretended testatrix, and the respondent again made default. Interrogatories on articulated facts were served upon the respondent in the latter case, amongst which were the following:
"Interrogatoire 4ibme-N'est-il pas vrai que le pr6tendu testament de la dite Dame Alphonsine Brunet,, portant la date du onzibme jour de novembre, mil huit cent soixante-quatorze et relat6 en la d~claration DURoHER. cette cause, n'a jamais & ni dict6 ni sign6 par la dite Dame Alphonsine Brunet qui ne savait pas signer ? "Interrogatoire 5i~me- N'est-il pas vrai que le dit testament a 6t6 dict6 par le d6fendeur ?
" Interrogatoire 6i6me-N'est-il pas vrai qu'apris la mort de la dite Dame Alphonsine Brunet, le d~fendeur a tent6 de faire faire par un notaire, A Montr6al, un autre testament que celui-ci dont il s'agit en cette cause
The respondent did not answer these interrogatories and they were declared in consequence pro confessis, as provided by the Code of Civil Procedure and a judgment was entered in the case which declared:- " Que le dit pr6tendu testament du onze mai, mil huit cent soixante et quatorze, est un acte faux et est en cons~quencenul et de nul effet."
These facts were set forth in the declaration in the present case and the instruments above referred to were produced and relied upon by the plaintiff as evidence of admissions made by the respondent of the validity of the plaintiff's claims and as creating strong presumptions in his favour and against the title of respondent.
Robidoux Q.G. for the appellant.
There is no record of title. Neither party can produce title deeds. The possession of respondent has not been exclusively for himself, but is of uncertain and doubtful character. See Beaudry-Lacantinerie Trait6 des Biens, no. 251, -52.
We find the proof of appellant's part ownership in the fact that the respondent, by means of a forged will, attempted to have the property bequeathed to him by his wife.
Why should he have recourse to this forgery if he had already been owner ? The forged will also clearly admits the wife's ownership. Proof of ownership by Alphonsine Brunet is also found in the deed of sale of the 27th February, 1889. Of the three immoveable properties which belonged to Alphonsine Brunet's children, lot 22 is the only one claimed by respondent. He admits that they are coproprietors of the two other properties mentioned in the will.
We have there the appellant's declaration, made in presence of the respondent, and signed by him, that the appellant has a title as an heir of his deceased mother, and that he sells all his rights to respondent in the property she died possessed of amongst which is the property in question. And further on in the same deed of sale we find words permitting the respondent, his heirs and representatives, to enter upon and possess the lot in question. In the judgment which annulled the deed of sale we find the equivalent of a title in favour of appellant. By the rescission of the deed of sale they were both replaced, as to the property sold, in the same position as they were before the sale, the appellant, by the effect of that rescission, again becoming owner, and from the day of the judgment annulling the sale he could have made a valid sale to a purchaser in good faith. The entry of the lot 22 on the book of reference, in the name of Alphonsine Brunet, constituted in her favour the presumption that she was the owner of the lot. Dal. Jurisp. Gen. Sup. Rep. " Propri~t6," no. 326. Presumptions must follow from such mention on the cadastre.
Martel v. Bory (1); Auclair v. Janet Ragon v. Beaujard
A deed may be cancelled, the obligation itself may be set aside, and still the recital in the deed makes complete proof of the facts mentioned therein, if the recital have a direct reference to the obligation itself.
(Art. 1210 C.
Judicial admissions preserve their effect even after the instrument has been annulled.
Admissions made in a compromise are effective, although the compromise may be a nullity
See Sewell, C.J. in Valliares v. Roy " what is formally and distinctly admitted * by an exception is evidence, though the exception be dismissed;" and also Fuzier-Herman
See also Duc de Poix., p. 44, 227. 2 Solon, Nullit6s, p. 8, no. 11 and following.
1 Aubry et Rau. p. 123.
1 Rolland de Villargues, " Acte" no.
In re, Grandval Beauveau v. Landanges (5); Larombiare, art. 1319, no. 9.
The admissions made in the deed of sale that the appellant is entitled to inherit from his mother; that he sells his interests in the lot no. 22, in his quality heir ; that he is in possession of the lot; that the respondent will take possession from the day of the sale, are clearly admissions which have a direct reference to the sale, and the dispositions of art. 1210 must be applied.
The only appearance of " transaction " in the deed of sale would apply to the account to be rendered by the respondent as tutor to the appellant.
There is no doubt expressed as to his rights. This sale is made avec garanties ;--warranty is only given by a party who is a proprietor, and who has a title.
This court cannot come to the help of respondent. His record leaves him charged with forging the will of his wife, procuring two witnesses who perjured themselves when the will was proved, and with having entrapped his son in a deed, in which he had him to falsely declare that he had been rendered an account and by this means to spoilate him of all he owned.
A. Geoffrion for the respondent. The deed set up against the respondent was an agreement to quiet differences and claims disputed and doubtful, it was a " transaction," and respondent had no interest to object to or deny what was entered there by those who drafted it. Now that it has failed to quiet these disputes, it cannot be contended that anything was then judicially admitted. Respondent is not estopped from contradicting what it alleges now that he has an interest in doing -so ; he had no such object at the time. Moreover this deed when annulled ceased to exist for all purposes and has, since it became a nullity, no effect as an admission or as creating a presumption in any manner. See Fuzier-Herman (1).
As to the will, the admissions are to the effect that respondent was actually owner of the disputed lots before the death of the testatrix and she only bequeaths other property belonging to her. It was an instrument declaratory of their individual rights executed between the husband and wife contrary to the provisions of the code forbidding contracts between consorts. The constructive confession of facts by default to answer interrogatories, is not a direct admission ; it is merely an incident in the suit and available in the particular suit only in which the default is recorded. The will was a nullity ab initio and was never relied upon in respect to the title now in question.
It was set aside only on grounds of informality, at any rate, and is now a nullity and of no more effect than the annulled deed.
The cadastral entry is evidently a mistake made by the officer who prepared it; it is not an instrument to which respondent was a party in any manner and he cannot be bound by anything entered either on the plan or book of reference in his absence and without his consent or approbation.
The cadastre spoken of in the French cases cited is an entirely different affair from that in use in Quebec, consequently those decisions have no application in the present case.
THE CHIEF JUSTICE.-In my opinion this appeal fails, and that for the reasons given in the notes of Sir Alexandre Lacoste to which I adhere in every respect. The action is a petitory one brought by a son against his father. It was for the plaintiff to prove his title, which in my judgment he has failed to do. I cannot see that any constructive admission by reason of default in answering faits et articles in the action to set aside the will makes proof as an admission in the present action. Nor can I agree with Mr. Justice Boss6 that the judgment in that action declaring the will faux proves that the respondent admitted the plaintiff's title by reason of anything he did in respect of the will, first, because the will having been annulled is for all purposes unavailable, and secondly, because the declaration of faux contained in the judgment does not show any admission on the part of the respondent. As regards the notarial deed of the 27th February, 1889, this was set aside as being in contravention of article 311 0. which declares null every agreement relating to the question of a tutorship which is not preceded by the rendering of an account by the tutor accompanied with the vouchers.
Mr. Justice Boss6 places much reliance on this deed as containing an admission on the part of the respondent by reason of his having signed this " acte," by which the appellant assumes to cede to the respondent On the other hand, the learned Chief Justice Sir Alexandre Lacoste, from the enunciations of the deed uhe ef contained in the following words, holds that the deed was not a veritable sale but a mere transaction, and that having been annulled by the judgment, nothing contained in it can subsist even as an admission.
In the first place I do not consider that the mere signing the deed even if it had not been set aside would have constituted an admission by the respondent of the truth of allegations introduced into it, not as made by the respondent himself, but by the notary whose acte it was, of statements made by the appellant exclusively. There is no such technical doctrine as that which prevails in the law of England as estoppel by deed to be found in the French law, and it is to be hoped that no such doctrine will ever be admitted into it. I agree, however, with Chief Justice Lacoste that the deed having been annulled has become a nullity, void, and inexisting for all purposes, just as much as if there had never been such a deed. Then the object of the deed was, as the Chief Justice holds, merely to effectuate a compromise of family disputes and to prevent litigation, and it would be unjust, now that it has failed to attain its end, for that purpose to twist its recitals into an admission by the respondent of the very claim which he had always denied and disputed, and which it was the object of the parties by the deed itself to settle amicably.
I see no admission in the deed.
As to the cadastre, that in no way bound the respondent, inasmuch as it was the act of a third party of which he is not shown to have been cognizant.
The cadastre here is, I find, a very different Juace.
thing from a cadastre in France.
The appeal must be dismissed with costs.
J.-I am of opinion that this appeal shoul& be dismissed, for the reasons given by the learned Chief Justice Sir Alexander Lacoste, in the Court of Appeal, and for the reasons given in the judgment of the Superior Court of the province of Quebec. The now appellant, who was plaintiff in that court, gave no evidence sufficient in law to establish his contention that his mother was seized of the property which is the subject of the action and which the plaintiff claimed as her heir.
and KING JJ. agreed that the appeal should be dismissed.
J.-Il s'agit ici d'une action pititoire intent6e par le fils, comme h~ritier de sa mire s6par6e de biens, contre son pare.
La Cour Superieure (Davidson J.), d6cida contre le fils.
La Cour de Revision, (Tait, Jett6 et Gill JJ.) renversa ce jugement. h l'unanimit6.
La Cour d'Appel, A son tour, r6tablit le jugement de la cour Sup6rieure, Boss6 et Blanchet JJ. dissidents.
C'est de ce jugement que le demandeur appelle. II a en sa faveur le sentiment des trois juges en Revision et de deux juges en Appel, tandis que le d6fendeur a trois juges en Appel et le juge de premibre instance.
Les faits de la cause ressortent du jugement de la Cour de Revision, que je serais dispos6 de confirmer pour les motifs qui y sont 6nonc6s-motifs que Mr. le juge Boss6 a dbvelopp6 dans les notes de son dissentiment; mais je suis seul de cet avis.
Appeal dismissed with costs.
Solicitors for the appellant: Robidoux, Chinevert c Girouard J. Robillard.
Solicitors for the respondent: Geoffrion, Dorion &
Allan.