Judgment of the Court
J.-By these appellants' deeds of purchase of the litigious rights in question, one of them is styled agent d'affaires contentieuses, and the other one is an attorney at law and barrister. I read the words agent d'affaires contentieuses as meaning " speculator in litigious rights" in partnership with a member the bar.
I am not sorry to have to dismiss their appeal. Such speculations are never viewed with favour in any court of justice. Their contentions are utterly unfounded.
What surprises me is that after having failed in the two courts of the province, they have had the courage, relying undoubtedly on the axiom audaces fortunajuvat, to bring the present appeal. The reasons given by the Court of Appeal in dismissing their action, as the Superior Court had done, Ro n are unanswerable.
The registration required of this Tight to the dower claimed on the property in question has never effectually been made, and the sheriffs titlea to the respondent has wiped off any right to the said dower, if any, that existed previously thereupon.
Art. 2116 0. C.; 44 & 45 Vict. ch. 16; 46 Vict. ch. 25; 47 Vict. ch. 15, sec.
Then, who is it that attacks the deed of sale to Hubert in 1865, of this property?
No one else but the vendors or their heir who has never renounced to their succession, or universal donee who has accepted the donation.
That is to say, the claimants, or the party under whom they claim, are in law, and by express stipulation, the very parties who are the warrantors of Hubert's title, and of those who hold under him, the very parties who have to hold Hubert and his representatives harmless from any attack made upon the deed of 1865.
How can they be admitted to attack, upon any ground whatever, that which in law and by their express undertaking they are bound to defend ?
Quem de evictione tenet actio eun agentem repellit exceptio is a rule founded on principles that will always govern. Pothier, Vente, nos. 167, 168. And a very important feature of the case, in the deed of sale to Hubert, is that Turcot's wife was actually a party to the deed as warrantor and was therefore obliged herself to defend Hubert's title and, of course, her son and heir not having renounced to her succession cannot attack that title. Art. 1467 C. C. ; Betournay v. Moquin The argument that Turcot, Jr., did not accept his father's nor his mother's successions cannot help the appellants. The law transmitted those successions to him.
Le mort saisit vif. He was seized of all their rights and obligations at the moment of their deaths, and renunciation is never presumed.
Arts. 606, 607, Then necessary to determine the point, I would be strongly inclined to hold that the interdiction Turcot, in 1864, was radically null, that the renunciation by his wife to her dower was legal and entirely put an end to it, and that the sale to Hubert was valid to all intents and purposes.
But if, as contenided for by the appellants, the sale to Hubert was null because Moise Turcot, the vendor, was interdicted, I fail to understand how the donation to his son by this same interdicted person can be valid.
However, it is unnecessary for us to expressly determine other questions than those determined by the judgment appealed from, and the appeal should, in my opinion, be dismissed with costs, for the reasons given by the said court.
Appeal dismissed with costs.