DAvIs J.-I will not dissent from the judgment proposed to be given by a majority of my colleagues confirming the judgment of the Court of King's Bench, Quebec, though I entertain grave and strong doubts as to its correctness.
J. (dissenting)-The appellants claim that their late father Edouard Trudel who was admittedly owner of a share of certain lands in the Province of Quebec died without parting with such ownership and that respondent is the owner of the remaining shares therein and seek to have a partition or sale of said lands.
The respondent claims as heir or devisee of one Desparois whose title (if any) in or to the share of the appellants' father in said lands rests entirely upon certain alleged proceedings taken for partition resulting in an alleged licitation.
Edouard Trudel had lived and married in New York State and become insane long before said proceedings and so continued during same and for many years until his death.
Art. 1038 C.P.Q. provides that:
This seems imperative. Edouard Trudel was not made a party. A consent judgment sanctioned only by those owning other shares was entered. Later on upon it being discovered, as it must have been known to those acting, if care taken, that he was entitled to the share now claimed, an irregular entry was made on the cahier de charges that for his share of proceeds he would be entitled to claim.
There is nothing to connect deceased with this particularly unauthorized proceeding. Nor is there even the shadow of pretence for it in law, but later on, through steps taken by one or more of the parties concerned, the wife of deceased was improperly induced to accept a sum of money pretended to be proceeds of the sale and hence it is pretended the appellant and her children are bound thereby.
No curator was ever appointed for him in Quebec. By a New York Court his wife was afterwards appointed his committee.
It is proven by expert testimony that by the law of New York this gave her no authority in respect of the sale of his real estate. She could collect rents of real estate but that is as far as her authority went even in New York State.
Assuming for the moment that a foreign state where his land was could recognise her power in that respect, there was no 'such recognition or direction given by any one having power to give it in Quebec. Nor does it seem very clear what could have been done in that way.
I am unable, therefore, to understand how such proceedings can be held otherwise than a nullity so far as the share of the deceased was concerned.
This court, in the case of Serling v. Levine(1), held that the minor who was sued without a tutor being named and shortly afterwards came of age, and then had acted in many ways in such a manner as to induce some of us to hold that he had waived the right to object to the want of a tutor at the initiation of the proceedings, could not complain of such absence of a tutor.
Instead of defying and disregarding the court when he came of age, he had submitted and acted in many ways that some of us thought precluded him from insisting upon such an objection.
The court above, however, overruled us, and held the whole proceedings a nullity(1).
The acts and submissions of the defendant in that case after his majority (which if memory serves me were more than detailed in the judgment of my brother Brodeur) seem to me to have been more important in the way of overcoming the ihitial difficulty than anything relied upon herein as done by the committee of the insane person in the way of ratification. In principle I cannot distinguish that case from this in regard to the question of nullity.
There are many reasons why an insane man should be more jealously protected than an infant of somewhat mature years at least.
The law seems to make no distinction.
It seems idle to suggest that the proceedings are different, especially in face of the imperative language of the article I have just quoted. And in view of the fact that, the first step to inquire as to in a partition suit is whether or not partition can advantageously be accomplished.
See Art. 698 C.C. and 1040 C.P.Q., and other articles in each of the respective sections where they appear.
It so happens in most cases all the steps thus indicated as possible are needless, for a mere glance at the circumstances so demonstrates the situation and sensible people act. accordingly and proceed to licitation.
They proceeded in this instance by a consent judgment, but who consented?
The folly of disregarding the article requiring all co-heirs or co-proprietors to be made parties became be putting a premium on worse conduct in the like cases.
Having considered all the articles of the Civil Code and Code of Procedure cited to us, and many others, I do not see the necessity for elaborating the matter.
The case of Bank of Montreal v. Simson(1), illustrates how' the law in Quebec has always looked at the interest of minors and the limited powers of tutors in regard to certain classes of property held by the minor.
Curators stand in the same position relative to any powers they may have unless when expressed otherwise. And when we contemplate the shadow of one as it were acting by reason of an analogous appointment in a foreign state and not renominated under the law of the country where an immoveable is in question, I fail to be able to attach any importance to her acts or omissions as having any bearing upon what is really involved.
And the importance sought to be drawn herein from what was done as if judicially done, suggests I should refer the inquiring mind to the case of Davis v. Kerr(2), SUPREME COURT OF CANADA.
[VOL. LVI. apparent in this instance for the consent should never have been given because one of the parties who should have been joined therein was in an insane asylum without a curator or committee.
If that had been disclosed no doubt the judgment never would have been entered.
The conduct of someone was at fault and no need for harsh words, but yet it seems quite incomprehensible without suspecting someone of at least crass negligence.
To maintain such a proceeding it seems to me would at page 244, where TascLereau J. is reported as making some pertinent remarks which might well be applied to some things done or permitted in the proceedings in question herein.
Holding the entire proceedings a nullity so far as the share of the deceased was concerned, I need not trouble myself as to the possibility or propriety of taking another course than that taken by those instituting the proceedings.
Nor do I see any difficulty in regard to the proof of the marriage of deceased and legitimacy of the appellants. Much less has been acted upon judicially. Indeed I respectfully submit if the ground taken by the court below and in respondent's argument that the original record was quite regular and the adjudication therein valid and the appellants' action denying positions so groundless.as these suggested I do not see why that feature of the case and the utterly void conduct of the committee in what she did as representing the court in New York should be laboured with or given prominence as it is at every turn in both judgment and argument.
The English system relative to the insane and their property of which New York law is, as it were, the heir, does not furnish quite as much safeguarding or restriction as the French system in force in Quebec relative to the appointment of a guardian called in the one a "committee" and in the other a "curator." The results are surprisingly alike, though possibly differing in origin and mode of appointment.
But in the last analysis the entire power of a committee of a lunatic is statutory and there is not a vestige of authority in the state of New York to maintain that which the wife of deceased was induced to assume. And it does not require much penetration to discern by whom and why she was so induced.
Inasmuch as the principle upon which a licitation sale is rendered by Art. 1054 C.P.Q., in its results analogous to the effect of a sheriff's sale, our decision in the case of Leroux v. Mclntosh(l), may be worth considering.
The appeal should be allowed with costs here and below and the judgment of the learned trial judge restored.
Since writing the foregoing the case has been reargued but I see no reason for changing my opinion as the result thereof.
J.-We have heard this appeal argued twice.
While careful consideration of it on each occasion has not entirely dissipated all doubt in my mind whether the conclusion of the learned trial judge-at all events in so far as it established the title of the plaintiffs other than Mary Maher-should not be restored for the reasons stated by him and by Mr. Justice Cross, I am not convinced that the several judgments entered in the partition proceedings, through which the defendant claims title, must not first be set aside.
That relief, if sought, could not properly be granted in this action in which the parties to those proceedings are not before the court.
Although it is expressly provided by art. 1038 C.P.Q.
it is conceded that there was no representation whatever of the interest of Edouard Trudel, one of the coheirs, in the partition proceedings until after the property had been sold and the record shews that neither he nor his foreign curatrix was made a party to them at any stage.
I am by no means satisfied that under the law of the Province of Quebec a foreign curatrix or committee of a lunatic, who, according to the law of the forum of Anin her, appointment, was not authorized to dispose of his real property, could, by her approval and ratification of proceedings already had for the sale of the lunatic's interest, vest it in the purchaser.
If she could, I question whether the terms of the power of attorney given by her to Mr. Prefontaine would enable him to give such approval or ratification on her behalf, or to represent her in the proceedings subsequent to its date. He does not appear to have had any other authority.
As a matter of fact, although Edouard Trudel's interest as a co-heir was brought to the attention of the court, as appears from the cahier des charges, as already stated, neither he, nor his committee or curatrix, was ever joined as a party to the proceedings.
It is only including the joinder of all co-heirs or co-proprietors as parties, as prescribed by art. 1038, that the adjudication, under art. 1054 C.P.Q., transfers the property. Whatever there may be in the nature of an estoppel against the plaintiff, Mary Maher, the curatrix, by reason of her receipt and retention of the moneys representing her husband's share of the proceeds of the sale does not affect her co-plaintiffs.
Nor, so far as I am aware, have their rights been extinguished by the expiry of any period of prescription.
Yet, while it may be a little difficult to understand on what ground a judgment pronounced in a proceeding to which neither he, nor any person representing or in privity of estate with him was a party, should be held so far binding on the owner of an interest in property that he is obliged to have it set aside before asserting his title in the courts against a person whom he finds in possession and claiming ownership, the procedure provided for by art. 1185 C.P.Q. would seem to indicate that this is necessary. On this ground alone, therefore, though not without hesitation, I concur in the dismissal of this appeal.
J.:-La pr6sente action en partage est mal dirig6e contre le d6fendeur Archambault. Ce dernier, d'apris le demandeur, serait le d6tenteur d'un lot de terre qui appartenait jadis A la succession Trudel et qui aurait t6 vendu en 1893 par l'autorit6 judiciaire sur action en partage. .La demanderesse pr6tend que cette vente judiciaire est nulle parce que son mari, I'un des h6ritiers, n'aurait pas 6t6 r6gulibrement mis en cause.
I appert par les proc6dures qui ont amen6 cette vente qu'Edouard Trudel, le mari de-la demanderesse, n'avait pas t6 assign6 comme l'une des parties. Plusieurs ann6es auparavant quelques-uns de ses frres avaient dispos6 de ses int6r~ts dans la propri6t6, vu qu'il 6tait incapable de vaquer A ses affaires et qu'il 6tait alors dans un -asile d'ali6n6s.
Le tout paraft avoir 6t fait par ses frbres avec la meilleure foi du monde et dans son meilleur int6rat.
La part qu'il avait 6tait de peu de valeur. Cela avai t t6 fait 6videmment pour 6viter des frais. A tout 6v6nement lorsque le cahier des charges sur Faction en partage de 1893 fut pr6par6, on a di d6couvrir. que la vente des droits d'Edouard Trudel 4tait nulle et alors on a insrb une clause dans les conditions de vente par laquelle les droits d'Edouard Trudel & un onzibme indivis de la propri6t6 6taient reconnus. Des proc6dures furent prises par la demanderesse -pour se faire nommer curatrice A son mari et pour retirer sa part dans le prix de vente.
La propri6t6 fut vendue par Ia cour. La demanderesse toucha la somme qui repr6sentait les droits de son mari.
La propri6t6 passa entre les mains de divers acqu6reurs; et, suivant Ia demanderesse, le d6fendeur Archambault en serait maintenant le propri6taire.
Elle le poursuit en partage en all6guant que le premier partage est nul.
II est de principe 416mentaire que les parties ne peuvent intenter une nouvelle action pour sortir de l'indivision tant que la nullit6 de la premiere vente n'est pas prononcde.
Baudry-Lacantinerie, vol. 8, No. 3513; Demolombe, vol. 15, No. 518.
Maintenant contre qui cette action en nullit6 doit-elle Atre dirig6e? Est-ce contre le d6tenteur de la propri6t6 ou contre ceux qui ont 6t6 partie au partage? Cette premibre vente constitue un contrat judiciaire qui, comme les autres contrats, est susceptible dans certains cas d'8tre annul6 ou d'6tre nul. L'action en nullit6 attaque un contrat qui est pr6sum6 avoir r6uni le concours de tous les h6ritiers. Je considbre que cette action doit Atre dirig6e contre tous les co-partageants. Duranton, vol. 7, No. 584; Demolombe, vol. 17, No. 457; Aubry & Rau, vol. 6, p. 577; Laurent, vol. x, No. 497.
Avant d'instituer la pr6sente action, il 6tait done du devoir de la demanderesse de se presenter devant les tribunaux et de r6clamer, en pr6sence de ses coh6ritiers, la nullit6 du contrat auquel ils ont 6t partie en 1895, lors de la premibre action en partage.
II peut se soulever entre ces co-h6ritiers des d6bats de comptes et partages qui pourraient an6antir ses droits dans l'immeuble en question en cette cause-ci. me semble que la demanderesse, avant d'attaquer Archambault, devra s'adresser A ses co-h6ritiers. La Cour d'Appel a donc bien jug6 en renvoyant son action.
L'appel est renvoy6 avec d6pens.
Appeal dismissed with costs.