St. Denis v. Quevillon

' *Feb. *May FRANQOIS-XAVIER QUEVILLON

HENRI PAYETTE (DEFEND- RESPONDENTS. ANTS) ............................

APPEAL FROM THE OF KING'S BENCH (APPEAL SIDE), PROVINCE OF QUEBEC.

Per Duff and Anglin JJ.-The promise sale and pacte pr~f6rence, being stipulations separate and distinct from the contract of lease, did not create real rights in the property leased which might be protected registration under the registry laws of the Province of Quebec.

Under the laws of that province (there being no evidence bad faith on the part of the purchaser), the purchase of the leased property with knowledge of the owner's obligations, in personam, could not render such pur- * chaser liable to a decree for specific performance thereof. Per Fitzpatrick C.J. and Anglin J.-The plaintiff had the right to bring his action notwithstanding the expiration of the period two years after the date of the sale; the wrongful act of the lessor, in violation of his obligations under the deed of lease, did not impose upon the lessee the duty of asserting his rights at a period earlier than that required in his option.

Judgment appealed from K.B. 436) reversed.

APPEAL from the judgment of the Court of King's Bench (1), reversing the judgment of Lafontaine J. in the Superior Court, District of Montreal, and dismissing the plaintiff's action with costs.

The material circumstances of the case are stated in the head-note and the questions in issue on the present appeal are discussed in the judgments now reported.

(1) Q.R. K.B.

THE CHIEF JUSTICE.-This is an action "en passation de titre" and in the alternative damages are ST. DENIS claimed on the ground that the defendants, now re- QVoN. spondents, conspired together to prevent the plaintiff, The Chief now appellant, from getting his deed. The trial judge

Justice. maintained the action, but his judgment was reversed on appeal to the Court of King's Bench on these two grounds:- (1) That respondent Payette was a "bond fide" purchaser for value, and that his knowledge of the option given his co-respondent Quevillon to the appellant St. Denis in the lease of the latter did not constitute him fraudulent purchaser or chargeable with illegal collusion;

That Quevillon complied with the stipulation in said deed lease in favour of said St. Denis respecting said option and that the said St. Denis did not exercise his rights of purchasing the property in question in this cause, although duly notified and put in default to do by the said Quevillon.

It appears by the record 'that in July, 1908, Quevil- Ion leased to St. Denis for a period of five years a store and dwelling; the lease was duly registered in the month of September following, and in the interval St.

Denis entered into possession of the premises which were subsequently purchased (8th June, 1910) by the respondent Payette.

The lease contains this clause:- Le locataire aura droit de prendre possession des dits magasin logement an vingt de juillet courant, Et le dit locataire aura outre le droit d'acheter l'immeuble ci-dessus loud, comprenant les dits magasin, logement, 4tal de boucher et dependances, en aucun temps pendant la dur6e du prdsent bail, moyennant le prix de sept mille cinq cent piastres, dont trois mille piastres seront payables comptant et la balance par versements annuels mille piastres, avec interet au taux de six pour cent. par an; et dans le cas oil le dit bailleur sirerait vendre A quelque autre pour un prix queleonque, il devra signifier l'avis par 6crit an dit locataire et donner la pref4rence A dernier.

The questions to be decided in this appeals are:- (1) What are the rights of the landlord and tenan4t respectively under this clause during the term of the lease; (2) what is the legal recourse of St. Denis in view of the sale to Payette ?

chief

The trial judge came to the conclusion that the intention of the parties was to give the tenant St. Denis the right, at -any time during the whole period of the lease, to purchase the property at $7,500; (2) to reserve to the landlord Quevillon the right to dispose of the property during the same period to any one and at any price, provided, however, notice in writing of the landlord's intention to avail himself of that right was given to the tenant, who was in that case entitled to take the property at the new price offered 'by any serious intending purchaser. The trial judge held -also that the sale to Payette, having been deliberately entered into by both the parties to it, for the purpose of defeating the plaintiff's rights, should be set aside.

I lagree entirely with the learned trial judge in his appreciation of the evidence and his statement of the law.

Having carefully -read the notes of Mr. Justice Cross in the court of appeal, I come to the conclusion that the main ground upon which the judgment of the Superior Court is reversed is that St. Denis, when notified of Quevillon's intention to sell, did not object more definitely and explicitly.

The learned judge says, speaking of the time when Quevillon served notice of his intention to sell to Payette:- With all respect, it is impossible for me to agree that the appellant was under any obligation to take action upon the notice served upon him by Quevillon, or that his rights under the promise of sale were in any wise affected by that notice.

By virtue of the promise of sale the appellant was entitled to buy the chief property at any time during the currency of the lease for the stipulated price of $7,500.

(S.V., 60.1.849.)

On the other hand, the respondent Quevillon reserved to himself the right to sell the same property at any time and for any price obtainable, but that right so reserved could only be exercised subject to notice to the appellant, who then was entitled to the preference, that is to say, to the right to purchase the property by preference on the same terms as the intending purchaser offered. To exercise this right it was, of course, necessary for the appellant to be informed not only the price offered, but also of the name of the purchaser, that he might be in a position to judge of the bona. fides of the offer (see Beaudant, page 224), otherwise the tenant could not intelligently exercise his right to purchase subject to which the landlord retained the right to sell notwithstanding the option contained in the first part of the clause.

I gather from the notes of judgment that Mr. Justice Cross is also of opinion that a notice such as was required was not given. He says:- If, as found by Mr. Justice Cross, the required notice was not given, I am with all respect, unable to understand how it can be said that Quevillon complied with the express condition subject to which he retained his right to sell and what steps St. Denis was obliged to take in order to protect his option, which had still about three years to run.- Coming now to the sale to Payette. Assuming in favour of the respondents that the clause in the lease is analogous to a "pacte de prdf6rence." In ordinary circumstances the recourse of the appellant Payette would be limited to damages (Beaudant, Vente et Louage, p. 224).

But the trial judge finds that Payette bound himself

When examined as a witness, he says that he was careful to take legal advice as to the meaning of the clause above quoted.

Payette also knew, before he bought, of the difficulty which had arisen between Quevillon and St. Denis about the sale and that the latter was insisting upon his right to have the terms and conditions under which the sale was to be made before exercising his right under his deed. And finally Payette served a protest on the appellant from which I quote the three following clauses:- ,What could be the object or the meaning of this protest if not to notify the tenant that he was thereafter to deal with his new landlord on the same footing as with the old and to warn him that the "charges, clauses et considerations spcifibes" in his lease were to be considered as still binding upon both parties ? I was much impressed by the argument that the provision in the deed by Quevillon to Payette above referred to was merely to give effect to article 1663, C.C., but after much consideration I cannot escape from the conviction that in the protest served by Payette on St. Denis the former construed his deed of sale to mean that he, Payette, acquired all the rights and assumed all the obligations of his vendor Quevillon towards St. Denis, not only as landlord, but also as owner of the property.

The authorities referred to by the learned trial judge are conclusive in support of his judgment granting rescission on the ground of collusion. Alambert v. Reynal(1) ; Dal. 1903, 2, 41 (vide note) ; Dal. 1903, The appeal should be allowed with costs.

J.-The appellant was lessee of certain property owned by the respondent Quevillon. By . the terms of the lease appellant was given an option of purchase at a price named, during the entire term of the lease and a further option, as some put it, but as others contend in modificatibn of said option, that in case the lessor should desire to sell to someone else for any price whatever that he must notify in writing the appellant lessee, and give the preference to the latter. We have heard many diverse attempts in argument to put a construction upon the terms of this clause. Some of these attempts seemed to me to begin with adopting that which might best fit the legal consequences sought to be reached by him arguing. I think we should, rather than beginning thus, begin 'by attempting to realize what the parties, in a business-like common-sense way, probably desired to accomplish and let the legal consequences be ascertained after so determining the realization of the actual purpose in hand when framing 'a somewhat ambiguously worded contract.

If there were surrounding circumstances which might have helped they have not been brought much in evidence by those concerned.

I think in default thereof we are safe in assuming that the parties were rational business people who were fair-minded enough at that stage, whatever they may have become since, to try to arrange to give such advantages to the lessee as would be likely to induce him to give the best renting terms he could, in light of such advantages, afford to the advantage of the lessor. And on the other hand the lessor would desire whilst giving the option not to be tied down thereto for five years if during that term he should find a purchaser.

It was agreed accordingly in such case that the lessee should be notified of any such proposal and given his alternative option. That no doubt was fair and a very common way, and common sense way, of dealing with such a problem and I think the docu- Idington J. ment should be construed accordingly.

If the respondent had acted thereupon in the way

I have no doubt intended originally, he would have informed the appellant of the offer he had got and its terms and possibly as evidence of, or means of shewing, good faith the name of the purchaser also.

The latter, however, need not have to be pressed for, unless the terms are such as to arouse some suspicion, and it was not.

A full knowledge of the terms, however, was pressed for and refused.

That part of the contract having been so broken could not affect the first option and hence that stood. Had it been honestly observed and the terms of the alleged purchase disclosed and the chance given appellant to accept them or reject them then the lessee would have been driven to act.

If he accepted in such case the matter of purchase was closed.

If he in such event had rejected such terms then I think the respondent, Quevillon, would have been quite within his rights in making the sale and the first option might have ended.

I have no hesitation in accepting the version of appellant as to what transpired when he sought to learn the terms.

The sort of contradiction given thereto is quite as emphatic as a straightforward assent thereto. So far I have little trouble in dealing with this case.

Before coming to what arises out of mere local practice and mode of thought, in regard to which T speak with diffidence, there are to be considered one or two interesting questions.

Is this contract a subject of registration ? It has, IdingtonJ. as embodied in the lease which was duly registered, but by some error so as to omit -an unimportant part of the land, been in fact registered.

Could it if embodied in a separate instrument have been registered ?

It seems to me that article 2085 of the Civil Code was only designed to force any one having a registrable deed to register it under pain of losing his priority even over another who has notice of the right conferred thereby unless he is claiming through an insolvent.

As it was in fact registered the operation of this article ,seems automatically eliminated from any possible bearing upon the question of what effect notice or knowledge on the part of Payette might otherwise have had on his good faith.

Hence it seems to me Payette whether 'acting in face of a contract affecting real property, or in face of a mere personal right such as his counsel contends this alleged unilateral contract to have been, must be held to have acted in bad faith.

In the latter point of view I agree with the learned trial judge that Payette has as a result of his bad faith become bound to observe the obligation thus resting upon Quevillon.

It is to be observed that the article 2085, C.C., does not in terms protect such a purchaser except as against

If as contended (of which I say nothing) this option was not the subject of registration then no protection exists for him acting in face of positive knowledge and he must abide by the general consequences attaching by law to such a course of conduct.

If on the other hand the unilateral contract is to be treated according to the authorities referred to in Mr. Justice Cross' judgment, at lower part of page 438 of the official report of this case in volume 23, Cour du Banc du Roi, then there can be no doubt of the matter.

And I most respectfully submit that in view of what I have above set forth relative to the question of registration the learned judge's view of the effect of the registry system upon said opinions, which he cites, is not well founded.

There is another view occurs to me, not in conflict with what the same learned judge has later on presented, and that is that an option such as this in question in a lease and forming part of the bargain between the parties might well be considered accessory thereto and part of the leasing contract and consideration for the terms in way of rental and, hence, cannot be dissociated from the lease in the way sought to be done by counsel for respondent. It is quite clear to my mind that many a man would for the sake of obtaining such an option in his lease be willing to increase the rent beyond what he would otherwise give and may have done so in this very case. The case where a tenant, as often happens, desires to make improvements (which the lessor cannot afford) in the property, and does so relying upon his option in the lease, is one where pushing too far the doctrine of the option being merely unilateral and hence merely a personal obligation dissociated from the lease proper might in the consequences work much injustice. As -this suggestion only occurs to myself and was not dealt with in argument by the able counsel representing the parties herein, I put it forward with much hesitation.

Yet I must say that when I come to consider the question of what meaning is to be attached to the language of the deed from Quevillon to Payette and the obligation therein to maintain the lease and of the protest following it relative thereto, I think such considerations are entitled to some weight.

When people speak of a lease they usually mean all that exists therein and hardly ever think of severing all that is therein from that which in a narrow sense alone constitutes the lease.

Looking to the matter in that way makes me the more inclined to adopt the view pressed by Mr. Lafleur that the vendee of Quevillon assumed as part of his obligation to maintain the lease, to observe the option therein as well as all else and thereby preserve his vendor from damages for breach of anything arising from the failure of said vendor to maintain his tenant in possession.

It may be answered 'the law in such case does so in case of registration. Granted so; what then is the use of any covenant unless to cover any risk beyond the mere tenant's possession ?

However all this may be I think the construction I put upon the much discussed clause giving appellant the option renders it unnecessary to rely upon this part of appellant's contentions.

It is the different construction which the court of appeal has put upon the said clause that gives rise to any trouble. The other way of construing it which I adopt leads on the reasoning of Mr. Justice Cross to the same conclusion as the learned trial judge. If anything in the objections of form of pleading and difficulty arising therefrom and practice I think they can be all overcome if necessary by amendment this court has the power and must observe the duty to make to render them conformable with the facts in order that justice be done.

I should, therefore, allow the appeal and restore the judgment of the learned trial judge with costs here and below.

J.-First as to the construction of the pacte de pr6f6rence. I think the lessor's right to sell was conditional upon his giving notice in writing to the lessee of the price at which he proposed to sell; and giving the lessee an opportunity to buy. Whether the lessee would be entitled to buy at the price mentioned in his option or at the price named by the lessor, or at the more favourable of the two is a question which I need not discuss.

The answer to it is by no means obvious and I express no opinion on it. No notice was given and the sale was therefore a violation of the lessor's obligation; and admittedly on this construction the lessee is entitled to damages; but in the view taken by the majority of the court it is unnecessary to consider how much.

Is the appellant entitled to enforce his option against Payette, the purchaser ? He is not entitled to do so in my opinion. The lessee's right under the promise of sale is not a jus in re. It is a jus in personam ad jus in rem acquirendum. The lessor's obligation, therefore, does not (in the absence of special circumstances giving a right against the purchaser) bind the purchaser from him or the land in the hands of the purchaser.

Then, is there just reason for enforcing the obligation against the respondent on the ground of bad faith ?

Of bad faith there is really no evidence, in the sense that the transaction was colourable. Bad faith in the sense of the English equity there was, the transfer, that is to say, was taken with full notice the appellant's rights; but I have not found any authority for the proposition that, in the law of Quebec, to purchase property with the knowledge of the owner's obligation in personam to sell it to anotherthere being no jus in re vested in the person in whom the obligation inheres-subjects the purchaser to a like obligation.

A more important question is as to the effect the registration of the lease. Has the registration the effect of making the obligation binding on the lands in the hands of a purchaser?

Does it transform a jus in personam into a jus in re ? The point to be determined is a question of strict law and that is whether or not the promisee's right is a droit r6el within the meaning of article 2082, C.C.

It is not a droit r6el within the strict meaning of that term, that is to say, it is not a right in the thing or a right assertable generally against the world. I ;have examined the context fully (see articles 2089, 2098, 1601, 1663, 2128, 2102, 2106, 2016, 2168, C.C.) and I can see nothing justifying an interpretation inconsistent with this. J.-There is no evidence in the record to sustain the defendant's contention that the plaintiff parted with his interest in the lease in question and, therefore, has no status to maintain this action. In the view I take it is not necessary to determine whether the option of purchase, which the lease gave to the lessee, was entirely independent of and unaffected by the pacte de pr6f6rence which follows it. There is a great deal to be said in support of the position taken by Mr. Justice Lafontaine that it was and that no action by the lessor under the latter clause could effect his obligations or the lessee's rights under the earlier provision; and I am far from being convinced that his view is not correct.

On the other hand, with great respect, I can find nothing to warrant the construction which its formal judgment shews was placed by the court of appeal on the pacte de pr6firence itself, namely, that by it the lessor, on receipt of any offer of purchase which he was willing to accept, was empowered to call upon his lessee to exercise at once his option to buy under the former clause, with the consequence that, if he should decline or neglect to do so and the lessor should accept the offer and carry out the sale, all the lessee's rights under the option would be extinguished. As I read the clause creating the pacte de prdftrence whatever may have been its effect (if any) upon the rights of the lessee under his option, it entitled him to a preferential right during the term of the lease to purchase the property at whatever price and upon whatever terms the lessor might desire to sell it to any other person.

It is obvious that it was essential to the lessee's enjoyment of this right of preference that he should have been told the price and the terms which the lessor was prepared to accept from the other proposing purchaser.

This information was refused him and he was notified that, although his lease had still J. more than three years to run, he must at once agree to buy the property under his option (which by its terms was to hold good until the termination of the lease), or forego all rights under it. Assuming, therefore, in favour of the lessor, that if proper notice had been given to enable the lessee to exercise his rights under the pacte de pr6f4rence his refusal to purchase under it would have extinguished his option to buy at $7,500, such notice was not given, the *lessee never had an opportunity to buy at the price and on the terms which the lessor accepted from the Payettes, and it follows that not only was the pacte de pr6fdrence itself broken, but the lessee's rights under his option remained intact.

I am, however, unable to agree with the learned trial judge that, notwithstanding the sale by the lessor to the Payettes and the subsequent transfer from Didyme Payette to the defendant Henri Payette, the plaintiff is entitled to specific performance of his lessor's promise to sell and transfer the property in question to him. Until he signified acceptance of his lessors' offer to sell under the option, as Mr. Justice Lafontaine states, it gave him no interest in the land but merely a personal right against the lessor. I have not found in the Quebec registry law any provision for the registration of an unaccepted unilateral promise of sale or anything which would render a subsequent purchaser from the promisor liable to implement such a promise merely because it was included in a registered document, such as a lease, which contained other provisions susceptible of registration.

With deference, I am unable to accept the view expressed by Mr. Justice Cross on this point.

The learned trial judge did not rest his judgment against the defendant Payette on this ground, but on _glin his knowledge of the plaintiff's option and fraudulent conspiracy on his part with his co-defendant to defeat it.I

By the sale to the Payettes the lessor put it out of his power to fulfil his personal obligation to the plaintiff, and, although the Payettes took subject to the lease, I cannot find that they assumed Quevillon's obligation to sell to the plaintiff, which was not an ordinary covenant incident or accessory to a lease, but a substantive and independent contract.

Fuzier- Hermann, Rep., vo., "Bail en g6n6ral," Nos.2354 and 2355; Guillouard, "Louage," No. 361.

On the contrary, the clear purpose of Quevillon and the Payettes was that'the latter should obtain a title free from any claim of the plaintiffs.

Quevillon guaranteed the Payettes against disturbance by St. Denis. Nor does it appear, as was alleged, that the Payettes were parties to a fraudulent conspiracy to deprive the plaintiff of a right which they knew he had to obtain the property. They appear to have acted in the belief, and on the assurance of Quevillon based on opinions of counsel, that he was entitled to determine all the rights of St. Denis, except his interest as lessee, by calling on him,- as he did, forthwith to exercise his option to purchase. Notice of the clause in the lease under which St. Denis claims did not, I think, under these circumstances (if, indeed, it ever would) suffice to establish bad faith on the part of the Payettes such as the learned trial judge thinks would render them liable at the suit of St. Denis to carry out Quevillon's obligation to sell to him.

Moreover, the deed to the Payettes was duly registered and the plaintiff has not asked to have it declared void or set aside.

Then is urged that by delaying for over two years after the sale to the Payettes before bringing action and paying them meantime the rental for the property under his lease, the plaintiff acquiesced in the sale to them and abandoned all rights under his option to purchase. He had, no doubt, an immediate right of action against Quevillon for his breach of the pacte de pr6ftrence by the sale to- the Payettes. It may be that he could have treated that sale as a repudiation by Quevillon of the option as well and sued him thereupon for breach of his promise to sell. But the lease gave the plaintiff the right to exercise his option at any time during the term, and I do not think he can be charged with default or laches in asserting that right during its currency. Notwithstanding what he had done the lessor might re-acquire the property or otherwise put himself in a position to meet the exigency of the plaintiff's option. I cannot think that the lessee was bound to treat the sale as a repudiation and breach of the option and elect promptly to bring action or to abandon his rights. He was entitled to wait until it suited him (of course, within the term of the lease) to make his demand upon the lessor to implement his promise to sell and on failure to meet that demand to bring action for the breach then committed. I cannot understand on what basis the position can be maintained that the lessor's own wrongful act in selling, without giving his lessee the benefit of his pacte de prdfdrence and in violation of the option, imposed upon the lessee an obligation to assert his rights under that option at a period earlier than the option itself required. The plaintiff certainly did nothing which amounted to a positive or direct renun- QUVoN. ciation of his rights, and, under the circumstances, Aglin.l. there was, in my opinion, no delay on his part which implied an abandonment, or barred his assertion of them.

I am, for these reasons, of the opinion that the appellant is entitled to succeed as against the defendant Quevillon for breach of his personal obligation, but that the recovery must be limited to damages. There is no material in the record, however, to enable us to .determine the quantum of the damages which should be awarded.

Under all the circumstances, while the appeal against the Payettes must be dismissed, I think it should be without costs. J.-Il s'agit d'une action en passation de titre qui a 6t6 maintenue par la cour sup6rieure renvoye par la cour d'appel.

Le demandeur appelle de ce dernier jugement. Les circonstances qui ont donn4 lieu h cette poursuite sont les suivantes.

Le 3 juillet, 1908, i'intim6, Quevillon, a lou6 & l'appelant St. Denis une certaine proprit6 pour cinq ans. Le bail contenait la clause suivante, qui a donn6 lieu au pr6sent litige:- Ce bail fut enregistr6 sur la propri!t6.

Le 28 mai, 1910, le locateur, Quevillon, fit signifier un protit h Pappelant et le m'it en demeure d'acheter la propri6t6 suivant la promesse de vente contenue an bail pour le prix de sept mille cinq piastres, et, qu'h d6faut par lui de ce faire, il d6clarait qu'il vendrait alors aux conditions qu'.il jugerait h propos.

Il ne d6nonga pas dans ce protit les conditions auxquelles il disposerait de sa propri~t6.

Le 8 juin, 1910, Quevillon, l'intim6, vendit la propri6t6 h Payette pour la somme de $7,925, dont $500 comptant et la balance qui ftait stipule payable au vendeur devait 6tre acquitte par versements de $400 par ann6e.

Il 6tait d6clar6 en outre dans 1'acte de vente entre Quevillon et Payette que ce dernier maintiendrait les baux existants.

Le demandeur a, le 22 novembre, 1912, insti tu son action en passation de titre quil a dirig6e et contre Quevillon et contre Payette, en all~guant qu'ils s'6taient concertks ensemble pour le priver de ses droits.

II pr6tend que la promesse de vente a tonjours continu6 de subsister malgr6 la vente faite h Payette, que ce dernier, en s'engageant de maintenir le bail, a assum6 la promesse de vente qui y 6tait stipulde. Les d6fendeurs pr6tendent, an contraire, que le d6faut par St. Denis d'exercer sa promesse de vente a mis fin A son droit, que le demandeur 4tait libre de vendre la proprite h Payette et qu'il n'6tait pas tenu de lui d~noncer les clauses auxquelles il vendait la propri6t h Payette.

La cour sup6rieure a mainteunu 'action, mais ce jugement a 6t6 renvers6 par la cour d'appel.

Cette clause du contrat stipulant promesse de vente et pr6f6rence est loin d'Ctre claire et peut donner lieu a diff6rentes interpr6tations.

Aprbs avoir mfrement consid6r6 le contrat et les circonstances 6tablies par la preuve, j'en suis venu h la conclusion que le contrat pourvoit a une promesse de vente unilatirale et a un pacte de pr6f6rence qui doivent cependant s'interpr~ter l'un par lautre. Nous avons d'abord le locateur qui promet a son locataire de lui vendre pendant la dur6e du bail la proprit6 lou6e moyennant le prix de $7,500.

Mais en mime temps cette obligation de sa part se trouverait a disparaitre an cas oi il trouverait un acheteur pour sa propri~t6 et alors il ne pourrait en disposer qu'en donnant la pr6f6rence a son locataire.

Voila pour Flinterpr6tation du contrat. Maintenant Quevillon a-t-il rempli ses obligations ?

Je considbre que la mise en demeure qu'il a faite a St. Denis 6tait insuilisante. aurait dft lui d6noncer les conditions auxquelles il vendait a Payette, le prix, les teries de paiement, enfin toutes les conditions de la vente. Mais Quevillon ne s'est pas soumis a cette obligation.

Comme je le disais tout a P'heure, il a simplement demand6 par son protit a St. Denis d'acheter la propridt6 aux conditions contenues dans le bail.

Quevillon a done engag6 sa responsabilit6. Il nous reste A savoir si le demandeur avait droit A une action en passation de titre et de se faire mettre en possession de la propri6td, on bien s'il n'avait droft. des dommages.

Les intim6s pr6tendent que la proprit6 6tant Broer . pass6e entre les mains d'un tiers, le demandeur n'aurait pas le droit de revendiquer.

Je considbre que le concert frauduleux du promettant vendeur et du tiers acqu~reur et l'obligation du tiers acqu6reur de maintenir le bail m'am~nent Ai consid6rer comme bien fond6e 1'action en revendication. Sur 1'effet de 1'enregistrement d'une promesse de vente, P'honorable Juge Lafontaine, en cour sup~rieure, d6clare formellement dans son jugement qu'une promesse unilat6rale de vente, sans promesse r~ciproque d'acheter, de m6me que la promesse de pacte de pr6f~rence, ne conf6rent aucun droit reel et que, lorsque le promettant vendeur a cess6 d'8tre propri6taire, le recours que le promettant acheteur peut avoir est un recours en dommages-inthrits.

La cour d'appel, sur ce point, a d6c'id, au contraire, que:- Je serais port6 h croire avec la cour d'appel que tout droit dans une proprift6 r&ultant soit d'une promesse de vente, soit d'un autre contrat, est un droit reel et susceptible d'6tre enregistr6 et je citerais A lappui de cette opinion Dalloz, "Biens," No. 151. La loi ne dit pas qu'il n'y a que les contrats synallagmatiques, on bilat6raux, qui soient susceptibles d'ftre enregistr~s; mais tout acte qui est de nature h affecter une propri6td et h conf6rer un droit r6el sur F'immeuble pent donner lieu a l'enregistrement. (Aubry & Rau, vol. 2, § 209, note 1; Mourlon, Revue Pratique, vol. 2, p. 193, note 39.)

Il me semble que la promesse de vente et la facult6 de r~m6r6 devraient tre traitkes de la mame fagon. Dans la facult6 de r6mbr6 comme dans la promesse de vente le cr6ancier de P'obligation n'est pas tenu d'en demander F1execution.

n'y (a aucune obligation de sa part d'acheter.

Cependant si la facult6 de r~mr6 a enregistr6e, lacheteur ne pourra pas disposer de la proprit6; (art. 2102, C.O.).

Mais il n'est pas nbeessaire pour moi de disposer de cette question d'enregistrement, vu la conclusion a laquelle j'en suis venu sur les deux autres points de la cause.

Je considire en effet que le concert frauduleux qui s'est fait entre Quevillon et Payette et l'obligation assumbe par Payette de maintenir le bail engagent la responsabilit6 de ce dernier et le forcent a donner suite h la promesse de vente contenue dans le bail. Dans une cause analogue a celle-ci, la cour de cassation, en France, a dcid6 (Dalloz, 1903-1-38) que l'on pent annuler la vente faite au m6pris d'un pacte de pr6f6rence et condamner le tiers acqu6reur a la restitution de la chose s'il est constatk en fait que le tiers acqu6reur subrog6 par son titre aux droits et obligations r6sultant d'un bail a connu lexistence de ce droit de pr~f6rence et F'intention du b6ndficiaire d'en profiter.

Dans la pr6sente cause nous avons une promesse de vente stipul6e en faveur de P'appelant par lintimO Quevillon dans le bail qu'il lui a fait de la propritk en question.

Cette promesse de vente, enregistr~e sur la propri6t0, 6tait connue au d~fendeur Payette. La preuve d6montre, ainsi que le decide le juge ins- J. tructeur, que Payette et Quevillon s'4taient concert6s pour la faire 6chouer. Dans ce cas il n'est pas douteux que le tiers acqu~reur devient oblig6 vis-a-vis du titulaire.

De plus, Payette, en s'obligeant de maintenir les baux existants sur la proprit6, est devenu substitu6 aux droits et dbligations de Quevillon lui-m8me. s'est contractuellement substitu6 a 1'obligation qui pesait sur son vendeur et iI est tenu comme 1'6tait celui-ci.

*Le titulaire de la promesse est done en droit d'intenter contre le tiers acqu6reur l'action 'relle en dlivrance de la chose dbrivant du contrat qui les lie dbsormais et de provoquer en cons6quence l'annulation de la vente qui lui fait grief. Dalloz, 1885-2-259. Et mme an cas oti le tiers acqu6reur n'aurait pas pris vis-a-vis de son vendeur Pengagement de subir la r6alisation de la promesse de pr6fArence, s'il s'est concert6 avec le vendeur pour d6possider le titulaire du pacte de pr6f~rence, ce dernier pourrait tout de m6me provoquer la nullit6 de la vente comme faite en fraude de ses droits. Dalloz 1849-2-46.

Mais on dit que dans le cas actuel Payette en s'obligeant de maintenir le bail n'a pas entendu par assumer des obligations trangares aux rapports entre locateur et locataire.

Pothier, "Louage," No. 299, dit:- A Et il a 6t jug6 par la cour de Dijon que lacqu~reur d'un immeuble est oblig6 de respecter non-seulement le bail proprement dit mais les conventions qui y sont jointes et forment avec lui un tout indivisible. Sirey 1875-2-33.

Daus cette cause, jug6e par la cour de Dijon, le locateur s'ltait oblig6 de fournir une matibre premidre pour lPexploitation d'une usine que le locataire devait installer sur la proprith loue. II vendit plus tard la proprit6 A une autre personne avec obligation de maintenir le bail et la cour a d6cid6 que ce nouveau propriftaire 6tait oblig6 non-seulement de respecter le bail proprement dit mais les conventions qui y ont

6t6 jointes.

Il est vrai que cette d&cision a 6t6 critiqu6 par Guillouard et Fuzier-Herman. - Il me semble cependant que le fait pour un tiers acqu~reur d'assumer les obligations d'un bail doit couvrir tout ce qui y est mentionn6, car autrement les stipulations en faveur du locataire et pour lesquelles il est cens6 avoir donna consid6ration se trouveraient annul6es.

Dans la cause dcid6e par la cour de cassation et qui est rapport~e dans Dalloz, 1903-1-38, les tribunaux out 416cid6 que le tiers acqu6reur 6tait suppos6 assumer toutes les obligations contractees par son vendeur dans le bail.

Cette d6cision de la cour de cassation confirme par cons6quent la position prise par la cour de Dijon en

Je considbre que dans ces circonstances le demandeur avait le droit d'instituer son action en passation de titre, que le jugement qui a renvoyd cette action dolt tre renvers6 et que le dispositif du jugement de Ia cour sup~rieure devrait 6tre r6tabii.

Appeal allowed with costs.