Vézina v. Lafortune

~

D.

V. successfully defended an action brought by one S. to recover the balance of the purchase money of property soki, the court holding that the transaction was immoral and void. The sale was not formally set aside and V., retained possession of the property. A judgment creditor of S. caused the property to be sold to himself by the sheriff; and V. by her action to annul the sale attacks the validity of the respondent's title.

, that V., however defective her title, was in fact in possession of the propeity animo doinini, and that its seizure under a judgment against who was not in, or entitled to possession, was in contravention of article 699 of the Code of Civil Procedure.

:-It was for V. to establish that she was in possession anino domini at the time of the seizure, which was not done.

APPEAL from the judgment of the Court of King's Bench, appeal side(1), reversing the judgment of the Superior Court, District of Quebec(2), and dismissing the action with costs.

The circumstances in which the action was instituted and the questions in issue in the present appeal are stated in the head-note and in the judgments now reported.

*PRESENT:-Sir Challes Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.

(1) Q. R. 25 K. B. 544.

Q.R. 48 S.C. 254.

THE CHIEF (dissenting).-The facts out of which the case arose are few and undisputed. The appeal turns upon the construction to be given article 699 C.P.Q.

The respondent, being the judgment creditor of one Adble deSenneville, caused a writ of execution to be issued addressed to the sheriff of Quebec, under which the latter took in execution and sold -to him, the respondent, the immovable property, the title to which is now in question.

After the sale, the appellant brought this action to set aside the sheriff's title on the ground that at the time it was taken in execution and sold the immovable seized had become the property of the plaintiff under a good and valid title. The material allegation of the appellant's declaration, or statement of claim, is in these words:- The learned Chief Justice of the Court of King's Bench says that the appellant only incidentally invokes her right of possession.

I have carefully read the pleadings and found no reference either near or remote to any title to the property beyond that set out in the paragraph above quoted.

It is well to make it clear at the outset that in an action of this kind, en nulitd de d6cret, the plaintiff must prove either that she was the owner of the property or that she was in possession of it at the time of the seizure animo domini.

The trial judge finds specifically and that finding, concurred in by the Court of King's Bench, is not appealed from. To succeed here therefore it is necessary for the appellant to establish that she was in possession animo domini. The fundamental error in the judgment of the trial judge, if I may say so with all respect, lies in the assumption that, in the circumstances of this case, it was for the respondent to prove that the appellant was not at the time of the seizure of the property in possession animo domini. This is not the case of an opposition to the seizure made before the sale by the person in possession. Here the property was seized and sold as that of the person who must be deemed for the purposes of this appeal, in view of the concurrent findings below, to be the rightful owner and adjudged to the respondent. The sheriff's title conveys all the rights of the judgment debtor upon the immovable sold.

Articles 760 (8), 778, 779 & 780 C.P.Q.

The only ground upon which the appellant could rely was her possession animo domini.

(See interesting discussion as to this by Bugnet, note to Pothier, vol. 10, No. 526.)

How can the appellant be heard to say that she was in possession animo domini when, in a suit brought by her vendor to recover the purchase price, she, the appellant, actually had it declared that the sale she now relies upon was a nullity, that it conveyed no title to her and that she therefore could not be called upon to pay the consideration or purchase price.

One feels that it must be superfluous to quote authorities in support of the very elementary proposition that possession animo domini, which is what the Code requires, means what it says, a possession which is indicative of ownership.

As Baudry Lacantinerie says: Prescription No. 212:and again, par. 214:

It appears to me difficult to conceive how a vendee can successfully resist a claim for the purchase price of a piece of property on the ground that the sale was without consideration, as the title never passed, and then succeed in retaining the possession of the same property against its legal owner on the ground that the same vendee is in possession with the animu8 rem sibi habendi, or as owner.

Mere detention, of course, is not sufficient; there must be a seizin or investiture of the property sufficient to enable the freehold to pass.

Much might be said of the character of the appellant's possession which, at best, is merely constructive. But the Chief Justice below has so fully and conclusively disposed of the appellant's claim that I am content to refer to his reasons for judgment.

I would dismiss this appeal with costs.

J.-I would allow this appeal with costs, and would restore the judgment of the trial judge. J.-I think this appeal should be allowed and the judgment of the learned trial judge be restored with costs throughout.

J.-I would allow this appeal with costs. J.-The plaintiff, V6zina, attacks a seizure of real property in the City of Quebec made in May, 1914, at the instance of the respondent, Lafortune, as a judgment creditor of one deSenneville, and his title thereto as purchaser from the sheriff at the sale under such seizure.

DeSennoville, formerly the owner of the property, purported to convey it in 1910 to V6zina for $10,000. V6zina successfully defended an action brought by deSenneville in 1913 to recover $1,620, the balance then unpaid of the purchase money, the Superior Court holding that the transaction was immoral and therefore void. The sale was not formally set aside, however, that relief not having been asked and no offer to repay the $8,380 which she had received on account of the purchase money having been made by deSenneville; and V6zina retained possession of the property. That mutual restitution might have been decreed, had it been sought, seems reasonably clear.

French law, in that respect differing from English law, now regards that relief as the logical and legitimate consequence of a finding of nullity.

Sirey, 90, 2, 97 (cited by Mr. Justice Carroll); Lapointe v. Messier(1); Privost v. Bdard(2).

Whether the respondent, as an execution creditor of deSenneville, can set up the illegality of the transaction between deSenneville and V6zina and the consequent absence of title in the latter by way of defence to her action to set aside the seizure of the property, which deSenneville had purported to convey to her and of which she held possession, is a question that I find it unnecessary to determine.

If deSenneville could have recovered the propefty only upon the terms of making restitution to V6Zina of what she had paid on account of the purchase price, it is difficult to understand how the execution creditor of the former can have a higher right than his debtor, whose interest it is that is exigible to satisfy his demand, or how a sale made under his execution could vest higher rights in the purchaser.

The deed is in the record.

I find no provision in it constituting the purchaser a tenant.

On the contrary, it expressly provides:

Moreover, having successfully repudiated the obligation to make any further payment under this deed because of its nullity, V6zina's possession thereafter could scarcely be regarded as held under such a provision as the respondent suggests, if the deed in fact contained it.

That V6zina held possession. 4 titre de propridtaire and not 4 titre prdcaire seems to me indubitable. She did not hold as tenant or otherwise under or for deSenneville or for any person other than herself. She held it with the intention of asserting ownership. She may have been aware of the invalidity of her title, but that'knowledge would not affect the legal character of her possession. That possession would nevertheless be held animo donini. Fuzier-Herman, Rep. Vbo. Possession, No. 6; Baudry-Lacantinerie, de la prescription, Nos. 264-5.

The distinction made by Pothier between possession civile and possession naturelle, on which Mr. Justice Carroll relies, would seem to be inapplicable under the Napoleonic Code. Baudry-Lacantinerie, de la prescription, Nos. 204-5, and likewise under the Quebec Code, 9 Mignault, 358, 367.

The seizure and sale having been made super non possidente, I am, with great respect, of the opinion that they were invalid and that the title acquired by the respondent from the sheriff was, therefore, null. Dufresne v. Dixon

The appellant, as the person who was, or was reputed to be, in possession animo domini, is entitled to have it so declared and to have the sale set aside.

The appeal should be allowed with costs in this court, and in the Court of King's Bench, and the judgment of the learned trial judge should be restored. Appeal allowed with costs.