In January, 1856, R. McC. sold certain real estate to
. McC., his sister, by notarial deed, in which she assumed the qualities of a wife duly separated as to property of her husband, J. C. A. After the latter's death in 1866, J. McG., before a notary, renounced to the communautd de biens which subsisted between her and her late husband. E. C. K., a judgment creditor of B. McC., seized the said real estate as belonging to the vacant estate of the said B. McC., deceased. J. McC. opposed the sale, on the ground that the seizure was made super non domino et possidente, and setting up title and possession. She proyed some acts of possession, and that the property had stood for some time in the books of the municipality in her name. E. C. K. contested this opposition, on the ground that J. McC.'s title was bad in law, and simulated and fraudulent, and that there was no possession.
Held: That by her renunciation to the communautd do biens, which subsisted between her and her late husband at the date of the'deed of January, 1856, . McC. divested herself of any title or interest in said lands, and could not now claim the legal possession of the lands under that deed or by prescription, or maintain an opposition because the seizure was super non domino et non possidente.
APPEAL from a judgment rendered in the Court of Queen's Bench for Lower Canada (appeal side), at Montreal, confirming a judgment of the Superior Court :-Ritchie, C. J., and Strong, Fournier, Taschereau, Henry and Gwynne, J. J.
[VOL. Il. there, dismissing an opposition fyled by the appellant to the sale of certain lots in the village of West Farnham, seized as belonging to the defendant esqualitd, that is, curator to the vacant estate of the late Robert McCrkill.
The respondent, in the capacity of curator to the vacant estate of the late Seneca Paige, having obtained judgment against Edward Donahue, as curator to the vacant estate of the late Robert .McCorkill, caused twelve lots of land to be seized, as belonging to the estate of the said Robert McCorkill, in the village of Farnham, in execution of the said judgment.
The action in which judgment was sought to be executed was instituted in the year 1857 by Edward Finlay, and continued by respondent as curator to the vacant estate of the late Seneca Paige, against Robert McCorkill, then of West Farnham, upon two promissory notes, amounting to $730, one for $400, due in November, 1855, and the other for $870, due in November, 1856.
The appellant, widow of the late John C. Allsopp, and sister of Rorbert McCorkill, claimed, by opposition a fin d'annuler, the lots seized, on the following grounds: 1. The seizure was null as made super non domino et non possidente that neither McCorkill, nor Donahue, as curator, had ever been in possession of any of the lots since the date of the plaintiff's alleged title of debt. 2. That for more than twenty years she (the opposant) had been openly, peaceably, and uninterruptedly in possession, use and occupation of all the said lots as proprietor, and setting up a notarial deed from Robert McCorkill to the opposant, duly authorized by her husband, and a party to the deed of date the 2nd January, 1856, before notaries, to her, then the wife of John C Allsopp, of West Fainham, and by him duly authorized, of certain immovable property, including the lots seized, which are now village lots, and part of the north quarter of No. 42 in the fourth range of Farnham, and of No. 44 in the fourth range of Farnham, included in the deed of sale.
8. That she was entitled to claim the emplacements as her property by prescription, and had, since the date of her deed, paid all assessments and taxes on the lots, and leased and occupied them.
The contestation of the opposition. alleged, inter alia: That, at the time of the institution of said action, Robert McCorkill was in possession, animo domini, of all the property seized, and that he died in possession of the same, animo domini; that as soon as Robert Mc Corkill was sued by the executors of Seneca Paige, he organized, with the opposant, a general system of fraudulent transactions, with the object of divesting himself of all he possessed and vesting his sister, the opposant, with fraudulent, fictitious and simulated titles to his own property, acquiring, moreover, property in her name, but with his own resources, and passing in her name titles to debts due to him, the whole with the fraudulent intent of preventing his creditors from collecting any debt from him-amongst others that of the plaintiff; that the deed of 22nd January, 1856, was one and the principal of the fraudulent transactions above mentioned; that even if the said deed should have the character mentioned in the opposition, it would be null and void, inasmuch as the said Robert McCorkill would have thereby divested himself of all his property, in fraud of the late Seneca Paige, and would have rendered the recovery of the debt mentioned in the writ of execution impossible; that all the enunciations contained in the said deed were false, and so falsely made, in -;. Aler to give to said deed some apparent legality, which otherwise it would not possess even primd facie; that the opposant falsely styled herself as separated as to OF
[VOL. III. property from her husband, and as marchande publique, while in reality she was commune en biens with her husband, and did no kind of trade or business in her own name; that, as commune en biens, she had no legal status to acquire property; that the said deed purports that the price or consideration money had been by her paid in full, while, in fact, she had not paid anything, and has never paid anything, as she has herself admitted in the inventory by her made after the death of her husband on the 11th January, 1866; that, notwithstanding the said deed (22nd January, 1856), Robert Mc- Corkill continued to possess all the property described therein up to the time of his death, which took- place in 1874, and to draw all the benefits thereof, acting as proprietor, as in fact he was, making sales of portions of the same; that several years after the said deed, to wit, on the 27th September, 1859, the said Robert Mc- Corkill borrowed a large sum of money from the Trust and Loan Company, and mortgaged, as his own property, most, if not all, of the real estate described in the said deed of 22nd January, 1856; and in 1860, when it served his purpose, he applied for and obtained a ratification of title to the said real estate, without any opposition on the part of the opposant; that the opposant well knowing the nullity of the said deed (22nd January, 1856), and that she could not hold thereunder, contrived another fraudulent state of things, by which she supposed that the said deed might have the effect of passing the property to the community between her husband and herself,-and in the inventory by her made, as aforesaid, she declared the said property, or parts thereof, as being owned by said community-and, for the same fraudulent objects, she afterwards renounced the said community, and contrived, with the said Robert McCorkill, other fraudulent means of vesting herself with some apparent title to the same; that her husband, the said John C. Allsopp, at the time of his death, had no near relative in the vicinity of his residence, having left one sister, Anna Maria Allsopp, living V1U. at Cap SantE, in the district of Quebec, and a brother living in 'California; that the said Robert McCorkill, representing the estate of the said J. C. Allsopp as vacant, obtained his appointment as curator to such pretended vacant estate, and afterwards, to wit, by deed of assignment passed before M. Cldment, N, P., on the 14th December, 1867, the said Robert Mc Corkill is-gualitd, acting in conjunction with Cyrille Tessier, a pretended attorney, by substitution of power of attorney given, in the first instance, by James Carlelon Allsopp, in California, to Rev. N. Godbault, to sell his rights as heir to Henry Quetton de St. George, of Cap Santd, did pretend to sell to said opposant all the rights of the said curator and of the said James Carleton Allsopp in the estate of the said John Charles Allsopp; that the said deed bears on its face the evidence of its fraudulent character and of its nullity; that the fact of one heir being a party to such deed destroyed the theory of the estate being vacant; that Robert McCorkill and the opposant concealed the condition of the estate, in order to obtain the said assignment for a trifle, mentioning only two pieces of ground and pretending to acquire the whole under general expressions; that if, as alleged in the- said. inventory, the sale of January, 1856, vested in the community, the whole of the property seized would have formed part of the estate of John Charles Allsopp; that James C. Allsopp never gave power to Rev. N. Godbault to sell his rights to any one else than Henry Quetton de St. George, and the said Rev. IV. Godbault never gave power to said Cyrille Tessier to sell the same to any person but Henry Quetton de St. George; that supposing the said property to have vested in John Charles Allsopp (opposant's husband) by the deed of January, 1856, opposant would have acquired no right by virtue of the assignment of the 14th December, 1867-first, because Robert McCorkill was not curator to the vacant estate of John C. Allsopp. and if he were curator he never was authorized to sell, and Cyrille Tessier had no power whatever to sell to opposant.
Wherefore the said plaintiffs prayed that the said deed of the twenty-second January, 1856, be declared fraudulent and void, and that the said opposition be dismissed with costs distraits.
A ddfense au fonds en fait was also fyled.
The appellant, in answer to the contestation, denied the allegations of fraud, and set up that the opposant was not responsible for, nor was she aware of, the alleged fraudulent practices of the said late Robert McCorkill, &c.; denied the alleged possession of the said Robert McCorkill of the lots at the time of his death, &c. Appellant also alleged that in case the plaintiff were desirous of setting aside, or availing himself of any illegality in said deed of 1856 to said opposant, or the assignment to the said McCorkill, in his said quality, or of the alleged want of authority in Cyrille Tessier to make the alleged sale, and to plead, as he does, the rights of Henri Quetton de St. George, and to allege, or prove, the nullity of the power of attorney by James Carleton Allsopp to the Rev. N. Godbault, he (the said plaintiff) was bound to have shown interest in himself, or in the said Paige, to do so, and should have brought all parties interested into Court, and taken a suit to have the same set aside.
That the plaintiff could not obtain any resiliation of the deed, nor could he by general allegations of an organization to defraud on behalf of said .1lcCorkill, extending over fifteen years subsequent to the institution of said suit, and previous to the said judgment in favor of plaintiff, bind the opposant, or prove fraud on her part at the date of the deed set up in her opposition, or obtain the dismissal of her opposition.
acCam. That in fact the said McCorkill was considered by the opposant a good and correct man of business, and frequently acted on behalf of the opposant, generally without any formal legal authority; that it was not until long after his death that the said opposant was made aware that he had mortgaged any part of the property of the opposant, or. treated it as his, or had become bound to the Trust and Loan Company, under the loan in general terms alleged in said contestation. That any acts of fraud or improper conduct on behalf of said Mcorkill could not be held as inculpating the opposant without the clearest evidence of complicity on the part of the opposant, which complicity opposant denied, alleging, moreover, that the said now defendant, as curator to said MeCorkill, failed, or neglected, to urge the defence of the said Robert McCorkill in this cause, or to prove the receipts'fyled thereon, or to show the said notes sued on by the plaintiff to have been paid and compensated, and declined to authorize the proceeding with the defence, or to sanction the attorney of the deceased defendant proceeding with said defence. That the contestation of said opposition was contrived between the now plaintiff and defendant, to obtain possession unjustly of the lots seized in this cause, and to injure the said opposant.
Conclusion to dismiss contestation.
General replication to the ddfense en fait.
The case was inscribed for hearing and enqu~te at the same time, and a large number of witnesses were examined to show who was the bond fide possessor of the lots, and to prove that at the time of the deed to the opposant, Robert McCorkill was insolvent.
The deeds mentioned in the pleadings were fyled as exhibits, besides which several receipts signed by the Secretary Treasurer of West Farnham, certifying that the property stood in the books of that municipality in opposant's name since 1863.
There were also other notarial deeds filed, inter alia:
Exhibit P.-" Renunciation par Dame Mary Jane McCorkill A la communautd de biens qui existe entre elle et feu Tohn C. Allsopp, son 6pouse, copie, P. Beriau, N. P., 2 avril, 1866."
Exhibit Q.-"Authorization to renounce Estate John C. Allsopp, 7th April, 1866; J. Rainville, N. P."
The Superior Court for Lower Canada, sitting in and for the district of Montreal, rendered judgment on the 30th December, 1876, holding that the renunciation by the opposant to the communautd de biens that subsisted at the date of the deed of January, 1856, invoked by the opposant, disseized her and destroyed the claim made by her opposition, and destroyed also her claim made by prescription.
The Court of Queen's Bench (appeal side) affirmed the judgment, on the ground that opposant's title .was simulated and fraudulent, and that having suffered her vendor to act as proprietor, and to be the reputed possessor animo domini, she could not maintain her opposition, though she had done some acts of possession. Mr. Robertson, Q. for appellant:- The possession by the opposant of the lots seized at the time of the seizure and for many years prior to it, is established beyond any reasonable doubt. The following authorities, on which the appellant relies, clearly establish that a seizure of real property in the possession of a third party is a nullity. See Arts. 632 & 634 0. P. L. C. ; Pothier (1) ; Lee v. f'fylor (2) ; Atkinson v. Atkinson (3); Waring v. Zuntz (4).
In addition to this, on the face of the deed of 1856, all the rights of Robert McCorkill in the property sold, MaCRLL This deed is manifestly what our code calls a trans. latory title, a title competent to convey the land; and such a deed, followed by twenty years open possession, by payment by opposant of all dues and assessments since the date of the deed, by possession at the date of the seizure, and without proof of fraud or bad faith, or proof of any possession whatever on the part of the defendant, is submitted as sufficient base for the prescription pleaded by the opposant.
The plaintiff, by his contestation, takes the ground, first, that the deed of 1856 conveyed nothing to anybody, but was a fraudulent instrument got up to defeat the action of the curator' to the estate of Paige, and that this fraud was participated in by the appellant. Next, that if anything was conveyed to the appellant, she renounced it by renouncing to the community; and thirdly, that by the renunciation the lands went to the heirs of John C. Allsopp, whose residences and names are given in the contestation.
Now, whatever may be the rights of her late hus. band's estate in the land, the respondent cannot urge these rights, nor set aside the deed attacked, while no person is of record to protect the estate. The question as to the necessity of a substantive action revocatory is not decided upon by the judgment of the Superior Court appealed from; but the whole cause is made to turn upon the renunciation of the appellant, as depriving her of any right to fyle an opposition such as produced in this cause.
The renunication was registered in the Registry Office subsequent to the seizure of the lots in question, as appears by contestant's exhibit P. There is nothing to show who caused the registration to be made; the effects of the renunciation were not directly raised in the pleadings; nor the rights of the estate or the heirs of . the husband, in consequence of the renunciation; nor its effects on the rights of the appellant under her marriage contract.
The learned counsel then reviewed the evidence, arguing that the proof of the alleged fraud on the part of the appellant had failed, and that there was no evidence of record to show ddconfiture in 1856 or in 1878, and cited the following authorities:
Cummings v. Smith (1); McGinnis v. Cartier Lacroix v. Moreau (8); Ferridre, dic. de droit (4) ; Gugot, rep. (5); Abat v. Penny ; Demolombe (7); Mayrandv. Salvas (8); Bddaride de la Fraude (9); Lemoine v. Lionsais
Mr. Doutre, Q. and Mr. Haliburton, Q. for respondent:
The opposant bases her right of ownership to the lots seized on the deed of January, 1856. In this deed she falsely assumed the qualities of a wife separated as to property, for by her contract of marriage she is proven to be commune en biens. This fact alone is sufficient to prove that the deed was simulated and fraudulent. But we have a further proof, for at the death of her husband, in 1866, she, by a notarial deed, declares that she renounces to the communautd de biens, which subsisted between her and her late husband.
The vice which lay at the beginning of this transaction is still existent.
Pochier de la Possession (11); Chardon du Dol (12).
Even if she had acquired some interest under the deed of 1856, the moment she renounced, all rights acquired were abandoned, and she could not, by law, touch a single article belonging to the estate ; and if she had sufficient possession since ** then, she could not avail herself of that possession. See Art. 2191 C. C. L. C. Her possession is coupled with a title which is vicious, and having invoked no other title than that deed, the opposition should have been dismissed without further enquiry when it was ascertained that she was commune en biens, and had renounced the community.
The learned counsel further contended that it was manifest, from the evidence, the deeds relied on by appellant were simulated and fraudulent, and that she had never been bond fide proprietor of the lots, and never legally possessed them; and cited Hans dit Chauss6 v. D'Orsonnens and D'Orsonnens, opposant (1);
Chardon du Dol (2) ; Domat (8).
Mr. Robertson, Q. in reply:
If the deed cannot be attacked for fraud, it is a valid deed, and the property ceased to be owned by Robert McCorkill. If the renunciation had the effect of giving rights to other parties to the deed, they should be brought into the case.
It is manifest the seizure was made super non domino et non possidente, and consequently is null.
rHE CHIEF JUSTICE:
The opposant opposes the seizure in this case, and 7. asks to have the same declared irregular, illegal and null, and that the same may be set aside, and she maintained in her possession, and be declared to be, in so far as regards the plaintiff, proprietor of the lands seized in this cause, on- the ground that the lands so seized belonged to her by good and valid titles, long before and at the date of the issuing of the writ of execution in this cause, and long before even the existence of the alleged title of debt in the declaration of said plaintiff, and in the judgment rendered in the cause mentioned; and the title in the opposant is alleged as follows: " That by deed of transfer in due form of law, made on the 22nd January, 1856, before C. Morin and colleague, public notaries, at Farnham, Robert McCorkill, Esq., then of St. Rommald de Farnham, for divers, good and valid considerations, causes, matters and things in said deed mentioned, bargained, sold, assigned and transferred to the said opposant, thereto present and accepting, and thereto duly and specially authorized by the said John C. Allsopp, her husband then living, and party to said deed, the property, lands, tenements and hereditaments in said deed described," which description covers the land in question.
This property, though professing to be conveyed to the opposant as mrachande publique, wife of John Charles Allsopp, and from him separated as to property, separde quant aux biens, was not so, as she was commune en biens with her husband, as appears by his contract of marriage, and an inventory made by her after the death of her husband on the 11th Jan., 1866, whereby she declared the said properties, or parts thereof, as being owned by the said community, and on the 2nd April, 1866, the opposant renounced the communautd de biens. Having thus destroyed her title and possession, I think she has no locus standi to contest this seizure. I carefully refrain from the expression of any opinion on the validity of the deed from Mc Corkill to the opposant, or of the validity of the seizure as against any parties who have a right to contest it on the ground the property was not the property of the judgment debtor, or that the judgment debtor was not in possession domini.
'. FoURNIER J.
La prbsente contestation, soulev6e atu moyen d'une opposition afin d'annuter, origine des faits suivants: Le 16 octobre 1875, jugement contre Donahue, curateur i la succession vacante de feu .Robert McCorkill, pour la scmme de $700.00, montant de deux billets par lui souscrits, l'un le novembre 1854, et 1'autre le 18 d6cembre 1855, en faveur de Seneca Paige dont la succession, aussi vacante, est repr6sent6e en cette cause par 1'Intim6 en sa qualit6 de curateur.
Le novembre suivant, en ex6cution de ce jugement, douze immeubles d~crits au proc6s-verbal de saisie sont saisis sur Donahue, en sa qualit6 de curateur, comme appartenant i la succession de feu Robert McCorkill.
L'Appelante en cette cause (opposante en Cour inf6rieure) demande, pour deux raisons principales, la nullit6 de cette saisie, savoir : lo. que ni McCorkill, ni Donahue, curateur A sa succession vacante, n'ont jamais eu possession des immeubles saisis ; 2o. que depuis au-deld de vingt ans, elle a toujours 6t elle-meme en possession ouverte, paisible et publique des dits immeubles, en vertu d'un acte de vente que lui en avait consenti Robert McCorkill, son frbre, le 22 janvier 1856, et enregistr6 le 4 mars 1860.
L'Intim6 Knight, comme curateur A la succession vacante de feu Seneca Paige, a contest6 cette opposition: lo. par une d6fense as fonds en fait niant toutes les all6gations de l'opposition ; 2o. par une exception pdremptoire, dans laquelle il all6gue que la vente invoqu6e par 1'opposante (acte de vente du 22 janvier 1856) a t faite en fraude des droits de Paige, comme cr6anciers ant4- Macoam, rieurs A la dite vente. II all6gue aussi simulation et fausset6 des d6clarations contenues dans le dit acte de vente, et de plus, que McCorkill a toujours conserv6 la possession des dits immeubles animo domini, qu'il les avait hypoth6qu6s en faveur de la Compagnie " Upper Canada Trust and Loan Company ", que 1'Appelante agissait au dit acte comme femme s6par6e de biens, tandis que de fait elle 6tait commune en biens et ne pouvait cons6quemment acheter que pour le b6n6fice de la communaut6; il ajoute encore qu'elle n'a point pay6 le prix de son acquisition.
Aprs avoir oppos6 ces divers moyens de d6fense, l'Intim6 cite ensuite un autre titre en vertu. duquel l'opposante auiait pu, si elle 1'efit jug6 i propos fonder aussi sa r6clamation aux propri6t6s dont il s'agit, c'est l'acte de vente du 14 d~cembre 1867, consenti A 1'opposante par R. McCorkill, en qualit6 de curateur -A la succession vacante de John Charles Allsopp, conjointement avec Cyrille Tessier, agissant au dit acte comme procureur substitu6 de James C. Allsopp, frbre et. 1'un des h6ritiers de John C. Allsopp. Divers moyens de nullit6 sont invoqu6s contre cet acte. L'exception se termine par une conclusion demandant seulement la nullit6 de 1'acte de vente du 22 janvier L'opposante a r6pondu a ce plaidoyer, par une d6n6gation sp6ciale des faits allagu6s, en ajoutant que tous ceux qui sont survenus aprbs 'institution de 1'action de Edward Finley et al vs. McCorkill et le r~glement de la succession de John Charles Allsopp, son mari, en supposant qu'ils fussent prouv6s, n'6tablissent aucune participation de sa part & la fraude de McCorkill, et ne constituent pas un motif suffisant pour mettre de c6t6 son titre et sa prescription Grounds for setting aside the said deed and title of the opposant, or title given by prescription as alleged in the said opposition.
Elle all~gne aussi que pour attaquer son acte de vente du 22 janvier 1856, et l'acte du 14 d6cembre 1867, il 6tait n6cessaire de mettre en cause toutes les K . parties int~resses, on bien prendre une action directe pour les faire annuler.
On a vu plus haut que 1'appelante n'a fond6 son opposition que sur 1'acte de vente du 22janvier 1856, et sur la prescription qu'elle pr6tend lui Atre acquise. Cependant l'Intim6, dans son exception, cite de plus la cession du 14 d6cembre 1867, qu'il d6clare entach6e de nullit6 et de fraude, mais sans prendre aucune conclusion A cet 6gard, se bornant seulement A demander la nullit6 de 1'acte du 22 janvier 1856.
La contestation telle que soulev6e par les plaidoiries ne repose done que sur la validit6 de ce dernier acte, la prescription invoqu6e par l'opposante et la n6cessit6 de mettre en cause les autres parties int6ress6es avant de pouvoir faire prononcer la nullit6 de l'acte du 22 janvier 1856.
Aprbs une assez longue enqu6te sur les all6gations respectives des parties, la cour inf6rieure a, par son jugement du 80 d~cembre 1876, renvoy6 l'opposition, se fondant uniquement sur le d6faut d'int6ret on de qualit6 chez 1'opposante pour attaquer la saisie faite en cette cause.
Ce jugement a 6t6 confirm6 par la majorit6 de la Cour du Banc de la Reine, en appel, mais principalement pour le motif que la vente faite A 1'opposante 6tait simuet faite en fraude des droits de Seneca Paige, cr6ancier de McCorkill.
Etait-il n6cessaire d'aller plus loin que ne 1'a fait la Cour de premibre instance? Je ne le pense pas; car s'il est vrai que 1'opposante a perdu I'int6rst qu'elle pouvait avoir acquis en vertu de 1'acte de vente de 1856, et qu'elle n'a aucune qualit6 pour repr6senter ceux qui peuvent y avoir un interet, elle manquerait 6videmment, dans ce cas, d'un 616ment indispensable pour lui donner droit de s'immiscer dans la pr6sente contestation.
Quelle est, en effet, sous ce rapport, la position actuelle de l'opposante?
En supposant qu'elle ait acquis des droits en vertu de 1'acte de vente du 22 jansier 1856, les a-t-elle conserv6s ? On a vu plus haut qu'elle avait fait l'acquisition des propri6t6s en question en sa qualit6 de femme sdparde de biens, agissant avec ]'autorisation de son mari. Mais il est clair qu'elle n'avait pas cette qualit6, puisque son contrat de mariage, produit en cette cause, tablit qu'au contraire, elle 6tait commune en biens. Elle n'a en cons6quence pu acqu6rir pour elle-mome personnellement, et si son acte d'acquisition a quelque valeur l6gale, c'est a la communaut6 qu'il doit profiter, puisque par le parag. de l'art. 1272, la communaut6 se compose entre autres choses " de tous "les immeubles acquis pendant le mariage."
Aprbs avoir fait, le 11 janvier 1866, un inventaire des biens composant la communaut6 qui avait exist6 entre elle et son mani, dans lequel elle prend sa v6ritable qualit6 de commune en biens, ne croyant pas qu'il lui serait avantageux d'accepter cette communaut6, 1'appelant y a, plus tard, savoir, le 2 avril 1866, renonc6 par acte authentique, devant B6riau, N.P.
Depuis cette renonciation, l'appelant a-t-elle pu, d'aprbs la loi, conserver un droit quelconque sur les biens de la communaut6?
Il est certain que non. D'aprs 1'art. 1879, Code Civil, espce Depuis sa renonciation, 'appelante n'ayant absolument aucun droit aux immeubles de la communaut6, dont ceux saisis en cette cause font partie, il me semble MaconIn.r. parfaitement inutile de discuter la validit6 de l'acte du Exa 22 janvier 1856, ni le caractbre de la possession de l'opposante pendant 1'existence de la communaut6. Lors m6me que sa possession, (ce queje suis loin d'admettre), aurait t une possession 16gale pour le b6n6flce de la communaut6, cette possession, comme son titre A ces m6mes propri6t6s en qualit6 de commune en biens, a complbtement disparu par 1'effet de sa renonciation. Elle n'a eu depuis cette 6poque qu'une simple d6tention qui ne pouvait servir de base A la prescription qui exige une possession animo domini, ni lui faire acqu6rir aucun autre droit quelconque.
n'est rest6 chez elle ni possession, ni droits de propri6t6, et par cons6quent aucun int6r~t A s'opposer A la saisie des dits immeubles.
Pour ces motifs seulement, et d'accord avec l'honorable juge qui a rendu le jugement en cour de premiere instance, je suis d'avis que le jugement doit Stre confirm6 avec d6pens.
J., concurred.
3.:- This seems to me a clear case.
In 1856, during her marriage with John Allsopp, Jane McCorkill, the appellant, bought the landi seized in this case. She was in community with her husband. Consequently, these lands fell into the community Allsopp, her husband, died in 1865. In 1866 she renounced the community. " The wife who renounces cannot claim any share in the property of the community," says art. 1379 of the Civil Code. Yet, it is upon that deed of purchase of 1856, and upon that deed alone, that she now claims these lands by her opposition. She alleges and contends that she is in possession of them animo domini, and that the Ma~oum, seizure of these lands made upon the defendant is null. But the only title that she invokes, to sustain this allegation and to qualify her possession, is a title which, at the most, would give her only one half of these lands, and to which half she has renounced. This disposes of her opposition, and that is all we have to adjudicate upon in this case. It may be that the seizure is null; it may be that the heirs Allsopp can have it set aside; but we have in this case nothing to do with all this. All we have to determine is, whether Jane Mc Corkill, the appellant, has proved that these lands are in her possession as proprietor in virtue of the deed of 1856. I have shown that she is not. By the renunciation to the community which -existed between her and her husband, she has divested herself of any rights to these lands. Allsopp's heirs, at his death, and by this renunciation, in the very terms of art. 601 of the Civil Code, were then seized of these lands by law alone. In them vested the legal possession. The appellant detains the lands, it may be, but she has not the legal possession of them.
I do not wish it to be understood that I consider the sale of 1856 as valid; far from it; but I deem it unnecessary to go into this point, and merely say that, supposing it to be valid, the appellant has now no right to these lands under it. She may have established that the defendant is not proprietor of the lands seized, but, at the same time, it is clearly proved that she is not proprietor of them, and that she possesses for others. I am of opinion this appeal should be dismissed with costs.
GwYNNE, J.:- I agree that the opposant, having renounced all her estate and interest in the communauid, cannot support