Supreme Court of Canada
Denis-Cossette v. Germain, [1982] 1 S.C.R. 751
Date: 1982-05-31
Dame Mariette Denis Cossette, Dame Lisette Denis Labrie, Welley Denis, Jeannot Denis and Adjutor Denis Appellants;
and
Yves Germain, Victor Germain, Isabelle Dynes Bigaouette, Lucien Dynes, Marcel Cloutier, Juliette Dynes and the Attorney General of the Province of Quebec Respondents;
and
The Registrar for the Registration Division of Quebec Mis en cause.
File No.: 15494.
1981: February 9, 10; 1982: May 31.
Present: Dickson, Beetz, Estey, McIntyre and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Civil law—Sale of immoveables—Pupils’ property purchased by tutrix through interposed party—Subsequent sale to bona fide third party purchasers—Expropriation—Chain of title defective—Apparent defect—Defect can be opposed to third party—Judgment authorizing confirmation of voidable deeds—Confirmation unlawful—Sales and judgment annulled—Civil Code, arts. 269, 290, 307, 1008, 1214, 1235, 1484, 1918, 1920, 1921—Code of Civil Procedure, arts. 774 (former), 792 (former), 1355 (former), 1066v (former)—Quebec Railway Act, R.S.Q. 1941, c. 291, s. 91—Roads Act, R.S.Q. 1941, c. 141, s. 104.
Civil law—Tutorship—Pupils’ property purchased by tutrix through interposed party—Remarriage of tutrix—Tutorship ceases—De facto tutor subject to same incapacities as de jure tutor—Civil Code, arts. 283 (former), 290, 1484.
Civil law—Conveyance—Consent by reason of violence and threats not established—Reverential fear—Civil Code, art. 997.
Civil procedure—Direct action in nullity—Judgment authorizing confirmation of voidable deeds—Confirmation unlawful—Judgment of voluntary jurisdiction—Res judicata—Deadline for bringing action—Code of Civil Procedure, arts. 2, 26, 482, 483—Civil Code, arts. 2242, 2243.
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On August 27, 1947, respondent Isabelle Dynes Bigaouette, authorized by a judgment of the Superior Court (the Boulanger judgment), sold to her mother by mutual consent, on her own behalf and in her capacity as tutor to her minor children (appellants), immoveables in which she owned an undivided one-third share and her children an undivided two-thirds share. Two months later respondent remarried, and on February 2, 1948, her mother conveyed the immoveables back to her by a deed of gift inter vivos. In 1956, these immoveables were sold to respondents Germain and expropriated in part by the province on three occasions. The infringement of art. 1484 C.C. was discovered at the time of the first expropriation. In order to correct the defect, respondent Isabelle Dynes Bigaouette, appellant Mariette Denis Cossette (by then of legal age) and a tutor ad hoc, duly authorized by a judgment of the Superior Court (the Joli-Cœur judgment), intervened in the deed of transfer and conveyed to Her Majesty all their rights, titles and interests in the expropriated land. However, they refused to intervene in the second and third expropriations, and respondents Germain signed by themselves the deeds of sale and discharge.
The Superior Court and the Court of Appeal dismissed appellants’ direct action in nullity. Hence their appeal to this Court, to annul the Joli-Cœur judgment, the sale of August 27, 1947, and the gift of February 2, 1948; as to the deeds that followed, they asked only that the Court annul these documents as to the undivided two-thirds of the immoveables owned by them. They further asked for their share of the expropriation indemnity and to be declared owners of the undivided two-thirds of the residue of the immoveables.
Held: The appeal should be allowed, but in part only as to appellant Mariette Denis Cossette.
(1) Cessation of tutorship: The incapacities imposed on a tutor regarding purchasing the property of his pupil must continue when, although deprived of his function, he in fact assumed the tutorship and indefinitely prolonged his administration as the result of an error, his ignorance of the law or for some other reason. In the case at bar, appellants’ mother ceased to be their tutrix de jure at the time of her remarriage (art. 283 C.C., former), but since she in fact continued to act as their tutrix, the prohibition of arts. 290 and 1484 C.C. should be applied to her.
(2) Defective acquisition by tutrix: There was no doubt here as to the infringement of art. 1484 C.C. This was not a sale by judicial authority, since the procedure prescribed in art. 1355 C.C.P. (in effect at the time) was not followed: the sale authorized by the Boulanger judgment was a sale by mutual consent, not at auction,
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and the minors were not represented by a tutor ad hoc. This judgment therefore did not have the effect of correcting the defective titles. Accordingly, the sale by the tutrix to her mother and the latter’s gift to her daughter were irremediably vitiated and are annulled.
(3) Whether defects can be opposed to third parties: The nullity of the purchase could also be opposed to bona fide third party purchasers. The rule is that no one can transfer to another any greater right to a thing than he has himself. If a title is vitiated by some cause which renders it voidable, it can only be transferred subject to that defect, and if voiding is requested, it will be effective even against a bona fide third party purchaser. When the legislator wished to make an exception to the rule in order to protect third parties, he did so expressly. Moreover, the defect in title was an apparent one, readily ascertainable at the registry office. In not having a title search conducted, respondents Germain agreed to run a risk. They must bear the consequences of it. The defect could be opposed to the Attorney General also, but as his title was no longer disputed appellants were correct in claiming from him the expropriation indemnity to which they were entitled.
(4) Whether Joli-Cœur judgment defective: It was not possible to validly confirm an act affected by a prohibition which was still continuing at the time of the confirmation. The Civil Code itself provides for confirmation of the acts of a minor only during majority. Accordingly, the Joli-Cœur judgment, which authorized the confirmation of voidable acts during minority, was vitiated on its face because it authorized what the law prohibited. The judgment could not be based on s. 91 of the Quebec Railway Act, because that section in no way empowered a judge of the Superior Court to authorize a tutor, in his capacity as tutor, to convey his rights to the Minister of Roads without consideration. In view of the apparent defect which it contained, the direct action in nullity brought by appellants was justified and, since there was no res judicata on a judgment of voluntary jurisdiction, the strict deadlines of art. 484 C.C.P. did not have to be observed. Rather, it was the prescription deadlines which were appropriate, namely the thirty-year prescription (arts. 2242 and 2243 C.C.). The Joli-Cœur judgment should therefore be annulled.
(5) The case of appellant Mariette Denis Cossette: The allegations of appellant that her intervention in the deed of transfer should be annulled are dismissed. Clear evidence was necessary to annul on grounds of fear and violence a conveyance made in a private and a notarial deed. However, she retained her rights to the two other expropriation indemnities and her rights in the residue of the immoveables.
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Sub nom. Legault v. Carignan, [1964] S.C.R. vi, No. 9740, March 23, 1964, affirming Carignan v. Boutaric, [1963] Que. Q.B. 222, applied; McGregor v. Canada Investment and Agency Co., (1890) M.L.R. 6 S.C. 196; Lefebvre v. Goyette (1892), 2 C.S. 203; Davis v. Kerr (1890), 1890 CanLII 50 (SCC), 17 S.C.R. 235, considered; Meloche v. Simpson (1899), 1899 CanLII 68 (SCC), 29 S.C.R. 375; Groulx v. Bricault (1921), 1921 CanLII 34 (SCC), 63 S.C.R. 32; Darling v. Bricault (1924), 37 Que. K.B. 388; Morin v. Vallée (1939), 68 Que. K.B. 194; Roberge v. Bergeron (1939), 69 Que. K.B. 532; Normandin v. Les Religieuses Carmélites d’Hochelaga (1883), 3 D.C.A. 329; Lafleur v. Donegani (1849), 12 R.J.R.Q. 70; Lighthall v. Craig, (1884) M.L.R. 1 Q.B. 275; Méthé v. Gervais (1924), 38 Que. K.B. 28; Payette v. Baird (1940), 78 C.S. 371; Ménard v. Roy (1921), 32 Que. K.B. 350; Lamarche v. Bourbeau (1921), 27 R. de J. 481; Rose v. Pinsonneault (1927), 65 C.S. 287; Samson v. Samson (1896), 9 C.S. 386; Little v. Reaycraft (1917), 24 R.L. n.s. 8; Morin v. Mercier (1899), 16 C.S. 35; Banque d’épargne de la cité et du district de Montréal v. Viau, [1976] C.S. 901; Carpenter v. Déry (1877), 5 Q.L.R. 311; Latulippe v. Grenier (1898), 13 C.S. 157; Gervais v. Charbonneau et Rousseau (1910), 38 C.S. 330; Ouellet v. Rochette (1883), 9 Q.L.R. 289; Bossé et Roy v. Laplante, Que. C.A., No. 9494, March 25, 1974; Kellond v. Reed (1874), 18 L.C.J. 309; Ritchot v. Cardinal (1893), 3 Que. Q.B. 55; Stather v. Bennett (1912), 22 Que. K.B. 290; Hyde v. Mount (1905), 28 C.S. 385, referred to.
APPEAL from a judgment of the Court of Appeal of Quebec, [1978] C.A. 539, which affirmed a judgment of the Superior Court, [1976] C.S. 195[^1]. Appeal allowed, but in part only as to appellant Mariette Denis Cossette.
Jacques Croteau, Jacques Flynn, Q.C., and Claude Ouellet, for the appellants.
Jacques Larochelle, for the respondents Germain.
Pierre Jolin, for the respondent the Attorney General of the Province of Quebec.
English version of the judgment of the Court delivered by
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BEETZ J.—
I—Chronology of facts and proceedings
The events leading up to this complicated case date back to 1944.
On December 23 of that year, Henri Denis died intestate. He was the father of appellants, then aged between six years and one month old, and the husband common as to property of their mother, respondent Isabelle Dynes Bigaouette. His succession contained immoveables which, for the moment, can simply be described as lot 29 of the official cadastre for the parish of Ancienne Lorette, and lots 88 and 89 of the official cadastre for the parish of Ste-Foy.
These are the immoveables which are at issue.
Respondent Isabelle Dynes Bigaouette renounced her share in the community of property and became heir to her husband’s succession.
By a judgment dated January 8, 1945, Isabelle Dynes was appointed tutrix of her minor children and authorized to accept the succession of their father on their behalf. Respondent Lucien Dynes, her brother, was appointed subrogate-tutor. The immoveables at issue thus became the property of appellants as to an undivided two-thirds share, and of their mother and tutrix, as to an undivided one-third.
On August 21, 1947, a judgment of the Superior Court by J.O. Boulanger J. (the “Boulanger judgment”) authorized the tutrix to sell by mutual consent her pupils’ share in the immoveables, along with her own, for the total amount of $3,500 cash. This judgment was apparently rendered pursuant to arts. 1357 et seq. of the Code of Civil Procedure then in effect.
On August 27, 1947, the tutrix, assisted by the subrogate-tutor and acting in that capacity and on her own behalf, sold the immoveables to her mother Sarah Dynes Leclerc for the sum of $3,500 cash.
On October 25, 1947, Isabelle Dynes married John Bigaouette.
On February 2, 1948, Sarah Dynes Leclerc made a gift inter vivos of the immoveables to her daughter Isabelle Dynes Bigaouette.
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The sale of August 27, 1947, and the gift of February 2, 1948 were registered concurrently on February 5, 1948, as Nos. 321715 and 321716, by the same notary before whom the two contracts were made.
On April 15, 1953, Isabelle Dynes Bigaouette, assisted by her husband, sold a part of lot 29 to Onésime Philippe Brousseau for the sum of $4,550. This part of the immoveables is not in issue in the proceedings at bar.
On March 7, 1956, Isabelle Dynes Bigaouette, assisted by her husband, sold the residue of the immoveables to respondents Yves and Victor Germain. The land in question was an area of some 1,216,626 square feet. The price was $13,500, $6,000 of which was paid in cash. The balance was paid subsequently.
On May 17, 1957, the Minister of Roads of the Province of Quebec expropriated part of lots 88 and 89, an area of some 671,849 square feet, by a notice of expropriation filed and registered in accordance with art. 1066v of the Code of Civil Procedure in effect at the time.
Mr. André Cossette, notary, examining titles on behalf of the government, found that the titles of the Germains were defective on the ground, inter alia, that a tutor cannot, under art. 1484 of the Civil Code, become the buyer of the immoveables of those over whom he is appointed, either by himself or by parties interposed.
On April 1, 1960, the Boulanger judgment was registered against lots 29, 88 and 89.
On April 23, 1960, Isabelle Dynes Bigaouette requested authorization of a judge of the Superior Court to be allowed, in her capacity as tutrix for the four then still minor children, to convey to the Minister of Roads all their rights, titles and interests in the part of the expropriated immoveables which had belonged to them.
J. Achille Joli-Cœur J. of the Superior Court then requested the appointment of a tutor ad hoc, and service of proceedings on Mariette Denis, by then of legal age, on Victor and Yves Germain, and on the Minister of Roads.
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On May 5, 1960 a family council was held, and it recommended appointing respondent Marcel Cloutier as tutor ad hoc for the appellants, except for Mariette Denis. The family council also recommended that the tutor ad hoc be authorized to convey in his capacity as tutor without consideration all the rights, titles and interests of Lisette, Welley, Jeannot and Adjutor Denis in the expropriated portion to Her Majesty in right of the Province.
The recommendations of the family council were homologated by a judgment of Joli-Cœur J. of the Superior Court (the “Joli-Cœur judgment”) on May 16, 1960, the principal provision of which is as follows:
[TRANSLATION] WE AUTHORIZE the said MARCEL CLOUTIER, in his capacity as tutor “ad hoc” to the aforesaid minor children, to convey without consideration to Her Majesty Queen Elizabeth II, in right of the province of Quebec (Department of Roads), with the concurrence of the applicant, authorized by her husband, and of the said Mariette Denis, now of legal age, all titles, rights and interests of the said minors in the immoveables described above.
On June 17, 1960, respondents Yves and Victor Germain sold the expropriated land to the government for $20,766.20, which they acknowledged having received. Appellant Mariette Denis, respondent Isabelle Dynes Bigaouette assisted by her husband and respondent Marcel Cloutier, in his capacity as tutor ad hoc, intervened in the deed and conveyed to Her Majesty all their rights, titles and interests and those of the minors in the expropriated land.
On October 30, 1961, the Minister of Roads of the Province of Quebec expropriated another portion of lots 88 and 89, an area of approximately 337,100 square feet, by a notice of expropriation filed in accordance with art. 1066v of the Code of Civil Procedure in effect at the time and registered against lots 88 and 89, [TRANSLATION] “apparently the property of Yves and Victor Germain”.
Like the notary André Cossette in the first expropriation, the notary Jacques Perrin, examining the titles on behalf of the government, found that those of the Germains were defective, in view of art. 1484 of the Civil Code.
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On February 5, 1963, counsel for respondents Germain required respondent Isabelle Dynes Bigaouette, appellant Mariette Denis and appellants Lisette and Welley Denis, now of legal age, to intervene in a deed of sale to the government, to call a family council to appoint a tutor ad hoc to appellants Jeannot and Adjutor Denis, and to authorize him to intervene in the deed on behalf of the latter.
A family council was in fact held on February 18, 1963, but, far from complying with the request, it recommended that a tutor ad hoc be appointed for the two last minor children for the purpose of challenging by all available proceedings the Boulanger judgment, the sale of August 27, 1947, the gift of February 2, 1948 and other deeds if necessary, seizing the expropriation indemnity, and transact the rights of the said minors in the immoveables. The recommendation of the family council was homologated by the prothonotary of the Superior Court on February 25, 1963. However, this proposal was not put into effect until some years after the youngest of the appellants attained legal age.
On October 29, 1963, respondents Germain signed by themselves a deed of sale and discharge by which they stated that they were satisfied with the indemnity of $90,008 which they acknowledged receiving for the second expropriation.
On May 15 and 16, 1968, appellants brought this action against respondents to have a large number of the preceding deeds annulled, based primarily on arts. 290 and 1484 of the Civil Code.
- …
[A tutor] can neither buy the property of his pupil, nor take it on lease, nor accept the transfer of any right or any debt against his pupil.
- The following persons cannot become buyers, either by themselves or by parties interposed, that is to say:
Tutors or curators, of the property of those over whom they are appointed, except in sales by judicial authority;
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The incapacity declared in this article cannot be set up by the buyer; it exists only in favor of the owner and others having an interest in the thing sold.
After the action had been brought, on September 11, 1969, the Minister of Public Works of the Province of Quebec expropriated a further portion of lots 88 and 89, namely an area of approximately 50,000 square feet, by a notice of expropriation filed and registered in accordance with arts. 774 et seq. of the Code of Civil Procedure in effect at the time.
Another notary, responsible for examining titles, saw the problem caused by the minority of appellants, but accepted the judgment of the Superior Court authorizing the sale. This was the Boulanger judgment, not the Joli-Cœur judgment, since the latter judgment affected another part of the immoveable.
Respondents Germain received an expropriation compensation of $29,650, which they declared themselves satisfied with and for which they gave the government a discharge in a deed of January 22, 1971.
Following these three expropriations, there remained of lots 88 and 89, which had been the subject of the expropriations, and of lot 29, a residue of approximately 157,677 square feet in the names of respondents Germain alone.
The conclusions sought by appellants were amended several times and were not the same in the Superior Court, the Court of Appeal and this Court.
Originally, appellants were asking for the Boulanger judgment and the Joli-Cœur judgment to be revoked and for the applications allowed by those two judgments to be dismissed. They further requested that the Court annul with respect to the undivided two-thirds of the immoveables owned by them the sale of August 27, 1947, the gift inter vivos of February 2, 1948, the sale to respondents Germain of March 7, 1956, the sale to the Attorney General of June 17, 1960 and the intervention by Mariette Denis in that sale, together with the
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intervention by respondent Marcel Cloutier in his capacity as tutor, and the discharge to the Attorney General of October 29, 1963; finally, they asked to be declared owners of the undivided two-thirds of the immoveables without prejudice to the government’s right of expropriation, but subject to their rights to the expropriation indemnities which might be due to them.
Before the judgment of the Superior Court, they varied these conclusions: they added to the deeds which they were asking the Court to annul the discharge of January 22, 1971; with regard to the other deeds, they asked that they be annulled in their entirety, not merely as to the undivided two-thirds of the immoveables owned by them; they discontinued their recognition of the government’s right of expropriation; and finally, they asked that respondents Germain and the Attorney General be jointly and severally ordered to pay them the sum of $93,616.13 plus interest, that is two-thirds of the indemnity paid when the expropriations were made.
By these varied conclusions, therefore, appellants were asking, inter alia, for the Court to annul certain deeds completely, including the undivided two-thirds of their mother and tutrix. They were further asking for two-thirds of the expropriation indemnity, while claiming ownership of the expropriated land.
These were the conclusions sought in the Superior Court and the Court of Appeal. However, in the Court of Appeal appellants discontinued their conclusions regarding the Boulanger judgment.
In this Court, appellants orally amended their conclusions and returned in part to their initial conclusions. They asked that the Joli-Cœur judgment be annulled, and that the sale of August 27, 1947, and the gift inter vivos of February 2, 1948, be annulled completely and struck out; as to the deeds that followed, they were now asking only that the Court annul these documents as to the undivided two-thirds of the immoveables owned by them; they were not disputing the right of the government to expropriate, and they recognized its title but subject to their right to such expropriation indemnity, as may be due to them under the law;
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finally, they asked to be declared owners of the undivided two-thirds of the residue of the immoveables.
In addition to respondents and the Attorney General, these conclusions are directed against respondent Isabelle Dynes Bigaouette both in her personal capacity and in her capacity as tutrix to her children, and in her capacity as universal legatee of her mother, Sarah Dynes Leclerc; against Lucien Dynes in his capacity as subrogate-tutor as well as in his capacity as universal legatee of his mother Sarah Dynes Leclerc; against Marcel Cloutier, in his capacity as tutor ad hoc, and against Juliette Dynes in her capacity as universal legatee of her mother, Sarah Dynes Leclerc. In the Superior Court respondents Germain, on the one hand, Isabelle Dynes Bigaouette, on the other, and the Attorney General submitted separate pleadings. Respondents Lucien Dynes, Marcel Cloutier and Juliette Dynes declared that they submit to justice.
II—The judgments of the Superior Court and of the Court of Appeal
The Superior Court judgment, rendered by Georges Pelletier J., dismissed appellants’ action for the following reasons.
An appeal did lie from the Boulanger judgment and the Joli-Cœur judgment, but the appeal periods had expired and these judgments had acquired the force of res judicata; the action was an attempt to appeal from these judgments and the Superior Court had no jurisdiction to rescind them or revoke them.
Respondents Germain were bona fide third parties because the Boulanger judgment was of such a nature as to lead them to believe that there was no defect in the seller’s title. As they had purchased in good faith in these circumstances, respondents Germain became owners of the immoveables.
Further, the sale authorized by the Boulanger judgment was held to be a sale by judicial authority and the tutrix could purchase the immoveables in that case, as provided in art. 1484 of the Civil Code.
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Finally, the trial judge dismissed the allegations of appellant Mariette Denis, to the effect that her intervention in the deed of June 17, 1960 was forced from her by violence and fear.
The trial judge ordered appellants to pay costs as to respondents Germain and the Attorney General, but he denied respondent Isabelle Dynes Bigaouette the costs of her defence.
The judgment of the Court of Appeal, [1978] C.A. 539, was rendered by Lajoie and Kaufman JJ.A., and by Lamer J.A., as he then was. The principal reasons were written by Lamer J.A., concurred in by his two brother judges. Lajoie J.A. added brief observations.
The Court of Appeal concurred with the view of the Superior Court that respondents Germain were bona fide third party purchasers, in view of the Boulanger judgment: they acquired a good title and transmitted a good title to the Attorney General. In these circumstances, the Joli-Cœur judgment was not necessary. The Court of Appeal did not have to decide on the Boulanger judgment, which was no longer in issue. The Court of Appeal held that these judgments of voluntary jurisdiction did not have the force of res judicata. It nonetheless refused to revoke the Joli-Cœur judgment. The Court of Appeal did not rule on the specific case of appellant Mariette Denis. It did not have to do so, in view of its other findings. It dismissed the appeal with costs.
III—Preliminary question: cessation of the tutorship
There is one preliminary question which was not raised in the pleadings in this Court, or by the Court of Appeal, the Superior Court or the Joli-Cœur judgment. However, I do not think it can be passed over without comment.
At the time of her remarriage, respondent Isabelle Dynes Bigaouette was subject to art. 283 of the Civil Code, a provision which was amended in 1964 (1964 (Que.), c. 66, art. 5) and repealed in 1969 (1969 (Que.), c. 77, art. 11). On the day of her remarriage the provision read as follows:
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- A woman who has been appointed to a tutorship is deprived of it from the day on which she marries or remarries, and the husband of the tutrix remains responsible for administration of the property of the minors during such marriage until a new tutor is appointed, even if there be not community.
Respondent Isabelle Dynes Bigaouette therefore ceased to be tutrix on October 25, 1947, and nothing in the record suggests that she was reappointed as she was entitled to do, though only with her husband, pursuant to art. 282 of the Civil Code then in effect.
The question is whether this fact affects the outcome of the case.
I do not think so.
To begin with, the first of the deeds in the chain of title which appellants are asking be annulled was made on August 27, 1947, at a time when respondent Isabelle Dynes Bigaouette was still tutrix.
Also, it appears to me that the incapacities imposed on a tutor regarding purchasing the property of his pupil must continue when, although deprived of his function, he in fact assumes the tutorship and indefinitely prolongs his administration as the result of an error, his ignorance of the law or for some other reason: the minor needed this protection against his de jure tutor; he has no less need of it against his de facto tutor.
A French jurist, Paul Sumien, writes in an “Essai sur les tuteurs de fait”, (1903) 2 Rev. trim. dr. civ. 781, at pp. 781, 788 and 806:
[TRANSLATION] The expression de facto tutor is self-explanatory. A de facto tutor may be contrasted with a de jure tutor: he is someone who “wrongfully” assumes a tutorship, who acts as tutor without being legally entitled to do so. This frequently happens. It results in somewhat delicate situations, comparable to those caused by any de facto situation which comes into being and continues, sometimes for many years, outside the law, one might say in breach of all its provisions; however, this de facto situation has produced legal effects; what principles of law apply? That is the question raised by the de facto tutorship.
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Another practical hypothesis is that of the mother, the tutrix at law, who remarries without obtaining authorization from the family council to continue as tutrix. She loses the tutorship by the operation of law and thus becomes, with her second husband, de facto tutrix.
17.—Incapacities imposed on the tutor. For obvious reasons, the law imposes certain incapacities on the tutor with regard to his pupil. Thus, Art. 450(3) of the Civil Code states that he cannot buy the minor’s property nor take a lease of it, unless the family council has authorized the subrogate-tutor to lease it to him, nor may he accept the transfer of any right or debt against his pupil.
These various provisions are applicable to the de facto tutor. The contrary has been argued, noting the principle that incapacities are narrow in nature and cannot be extended to anyone but those to whom they are expressly made applicable by law. However, applying these incapacities to the de facto tutor is not extending them. The law imposes them on everyone who is a tutor, without distinction: the reasons for their being imposed on the de jure tutor have even more force with regard to the de facto tutor. The reason the legislator wanted a minor who has attained legal age to be unable to make a disposition in favour of his tutor before the final accounting for the tutorship has been rendered and verified is that until that time he is dependent on the tutor, and as the latter is still in possession of his entire property, he can use against him schemes of captation, influence, authority and even restraint. As such schemes are the same for someone who has been a de facto tutor as for someone who has been a de jure tutor, the reason for exclusion must be the same for either person.
On the other hand, L.P. Sirois (Tutelles et curatelles, 1911, at p. 298) observes:
[TRANSLATION] 366.—Let us assume that the tutorship has ceased and that the tutor has not yet rendered his account. Do the incapacities imposed on him by law with regard to his pupil disappear when his functions expire? - Yes, they undoubtedly do.
Thus, in accordance with this principle, the tutor who could not buy the minor’s property, take a lease of it and so on would be able to do so although he has not rendered an account. By subjecting the tutor to these incapacities so far as his pupil is concerned, the law sought to prevent the tutor from doing any act in which he might have an interest opposed to that of his pupil. These reasons disappear when the tutorship ceases, since the minor can now validly act on his own; and the incapacities disappear.
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We do not have to rule on the case of a minor who has reached legal age, and is not devoid of means of protecting himself. In the case at bar, appellants remained subject to incapacity after their mother remarried, and, since she in fact continued to act as their tutrix, the prohibition of arts. 290 and 1484 of the Civil Code must be applied to her. It is sufficient to note that it was she who, on April 23, 1960, applied to the Superior Court for authorization in her capacity as tutrix to convey the rights of her as yet minor children to the Minister of Roads.
If, as I think, appellants’ action must succeed, this conclusion is not affected by the fact that respondent Isabelle Dynes Bigaouette was deprived of her responsibility as tutrix by her remarriage.
IV—Defective acquisition by tutrix
There is no doubt as to this defect, and respondents Germain indeed conceded the point in their factum:
[TRANSLATION] Appellants devoted several pages of their factum to establishing that the sale by the tutrix of her pupils’ immoveables to herself was defective: this is not in doubt, since article 1484 C.C. says so specifically, and we admit that the only exception to this article is contained in article 1355 of the then Code of Civil Procedure.
It is therefore quite certain that the minors had an action to annul or for an accounting against the tutrix: the question is whether they had one against respondents.
- The sale of August 27, 1947 is not a sale authorized by art. 1484 of the Civil Code
The reference made by respondents Germain to art. 1355 of the Code of Civil Procedure in effect at that time leads me to consider without further delay one of the arguments accepted by the trial judge in concluding that the tutrix’s titles were valid. This argument is that the sale of August 27, 1947 was a sale by judicial authority in view of the Boulanger judgment, which authorized it. The trial judge cited the following passages from Sirois (supra, at pp. 268 and 269) on which he relied:
[TRANSLATION] … The sale of the property of minors, made pursuant to an order of a judge on advice of a family council, is a judicial sale. Accordingly, under the
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terms of Art. 1484 the tutor may in principle be a purchaser in such a sale.
The sale of the property of minors, in accordance with an order of a judge on advice of a family council, in our opinion offers a better guarantee of impartiality by the tutor than a sheriffs sale. For such a sale to take place, some expertise must be involved: experts value the immoveables for sale under oath, and make a report; this report is submitted to the family council, and the judge then approves the expert report and fixes the upset price, which cannot be less than the value found by the experts.
It should be borne in mind that the rule of Art. 1484 is an exception to the power of any person to purchase, and that exceptions must be strictly interpreted. It would be extending this exception not to recognize the right of the tutor to purchase in this case.
This argument is incorrect in law and it should be noted that it was not adopted by either the Court of Appeal or any of the respondents.
In the passages cited by the trial judge, Sirois deals with immoveables owned exclusively by minors, the sale of which is authorized by a judge. Sirois wonders whether the tutor can be a purchaser, and at p. 270 of his text, he finally concludes that this is not possible, contrary to the view taken by the trial judge.
In the case at bar, the immoveables were owned in undivided shares by the pupils and the tutrix, and the procedure prescribed for the sale of such immoveables, allowing the tutor exceptionally to be a purchaser, is contained in art. 1355 of the Code of Civil Procedure in effect at the time.
- In the case of a voluntary licitation of an immoveable held undividedly between a tutor and his pupil, and which cannot be advantageously divided, proceedings are had in the manner above-mentioned, and no purchase of it by the tutor is valid unless the minor is represented at the sale by a tutor ad hoc.
This procedure is a sale at auction and, as provided by art. 1355, the tutor can only be a purchaser if the minors are represented in the sale by a tutor ad hoc. This provision is moreover only an application of the general principle stated in art. 269 of the Civil Code:
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- If during the tutorship a minor happen to have any interests to discuss judicially with his tutor he is for such case given a tutor ad hoc whose powers extend only to the matters to be so discussed.
At pages 269 and 270 of his text, Sirois acknowledges that the exception of art. 1484 of the Civil Code is limited by art. 1355 of the Code of Civil Procedure in effect at the time:
[TRANSLATION] What should be said about the sale of an immoveable owned by the minor in its entirety?
Can the tutor be a purchaser in such a sale, authorized by the judge on the advice of a family council, even after having obtained the appointment of a tutor ad hoc? If we had only article 1484 he could: however, article 1355 of the Code of Civil Procedure allows the tutor to be a purchaser only of an immoveable which he holds in undivided shares with the minor, and excludes any other sale: Inclusio unius, exclusio alterius. It would appear that if the legislator had wanted to give the tutor this right, he would not simply have specified the case of a undivided ownership by the tutor and his pupils, as he did in article 1355. This article therefore amends article 1484.
If the tutor were a purchaser in such a sale, he could not give himself a title: for the sale is made by the tutor and the subrogate-tutor. If the law allowed a tutor ad hoc to be appointed in this particular case, as in the case of article 1355 of the Code of Civil Procedure, there would be less doubt, as the tutor ad hoc could give a title to the purchasing tutor, but that is not the case. As we have seen, a tutor ad hoc can only be appointed in the cases provided for by law. It therefore follows that the sale to a tutor of the immoveable of a minor in a sale of such immoveables is only valid in the case of article 1355.
We have often seen cases of tutors taking the most involved measures to become owners of their pupils’ immoveables. The method most generally used is that of having the immoveable purchased by someone who, a few days later, conveys it to the tutor. This procedure is absolutely illegal. The tutor does not acquire a valid title by this means. No one may do through a person interposed what he may not do directly. Article 1484 says so expressly.
Trudel is of the same view as Sirois: Traité de Droit civil du Québec, vol. 2, 1942, at p. 295.
See also Henri Turgeon, “Pratique notariale”, (1950) 52 R. du N. 417, at pp. 418 and 419.
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Finally, see McGregor v. Canada Investment and Agency Co., (1890) M.L.R. 6 S.C. 196, a case the facts of which are very similar to those in the case at bar. The headnote reads in part:
A sale under judicial authorisation is also null, where the property of a minor not represented by a tutor ad hoc, is sold to his tutrix through persons interposed who were merely prête-noms, and made no payment on account of the price.
In the case at bar, the mother of the tutrix paid, but with the money of the tutrix, to whom she later gave the immoveable gratuitously.
The Boulanger judgment therefore does not have the effect of correcting the defective titles.
I would add that this judgment authorized the tutrix to sell to a third party by mutual consent the share of her pupils as well as her own; but it in no way authorized her to purchase that share, directly or indirectly, as she in fact did. It did not authorize the tutrix to emerge from the undivided ownership acquiring the share of her pupils by this procedure. This is undoubtedly why in the Court of Appeal appellants withdrew their conclusions against the Boulanger judgment: although that judgment may have been wrongly obtained, as the trial judge suggested, it in no way affects the outcome of the case, since it can be seen from reading the judgment that it does not purport to authorize the tutrix to act as she did.
- Defects of the sale of August 27, 1947 and of the gift of February 2, 1948
I now come to the defects vitiating the sale of August 27, 1947 and the gift inter vivos of February 2, 1948.
It is clear that the Court of Appeal would have allowed appellants’ action if that action had been brought only against their mother and tutrix, and if the latter had been the only apparent owner of the immoveables. Lamer J.A. said on this point [at p. 547]:
[TRANSLATION] It is … with no hesitation that I come to the conclusion, distressing though it may be, that when she asked Boulanger J. to authorize the sale of her children’s share, the tutrix had then decided with, if not the complicity at least the concurrence of her mother, to purchase the property of her pupils through persons
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interposed. While it is clear that she did not contravene the judgment of Boulanger J., it is equally clear that she contravened the prohibitions of articles 290 and 1484 of the Civil Code. As a consequence, I am of the opinion that the sale to her mother and the latter’s gift are irremediably vitiated with respect to her children, and would have been even if they had complied with the requirements of the law regarding the disposition of the property of minors on the one hand and gifts inter vivos on the other.
Subject to what I said above regarding the Boulanger judgment, this conclusion by Lamer J.A. seems to me to follow unavoidably from the evidence.
The family relationship between the tutrix and her mother, the short time which elapsed between the sale and the gift, the fact that they were both registered simultaneously, the fact that the same notary recorded both deeds and presided at the family council which preceded the Boulanger judgment, and which specifically requested that the sale to the mother of respondent Isabelle Dynes Bigaouette be authorized, constitute presumptions of fact so strong and concurrent that they alone suffice to indicate that, in the absence of any contrary evidence, those deeds are defective. However, the record contains an actual admission by respondent Isabelle Dynes Bigaouette, to the effect that she agreed from the beginning with her mother that the sale of August 27, 1947 would constitute only the first stage in her own acquiring of the immoveables. She went so far as to advance the sale price to her mother:
[TRANSLATION] Could you explain to us what happened regarding the sale, which involved your mother?
A. The sale involving my mother - well, since I had all the children, they were young, and I had the money … I wanted to be in charge of the land, I wanted the land to be mine.
Q. You wanted everything to belong to you?
A. Yes.
Q. So, you say … please continue. You were saying?
A. So I told Mom, I said: I will give you the money, buy the land and give it back to me. She said: O.K.
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That is how it happened. We went to see the notary Duval. The land was sold. We went to see the notary Duval, and I got married. After that, Mom gave me back my land, when I was married to John Bigaouette.
Q. What led you to take this action?
A. Well, I said I am going to be in charge of it and I am going to do what I want with it.
The Court of Appeal therefore properly concluded that between the tutrix and the minors, the sale by the tutrix to her mother and the latter’s gift to her daughter are irremediably vitiated.
The most important question in this case is as to whether these defects can be set up against respondents Germain and the Attorney General.
V—Whether defects can be opposed to third parties
- Arguments made by the parties
Appellants contended that respondents Germain are deemed, under a presumption juris et de jure, to have known of the entries made in the registry office, that they were accordingly not bona fide, and that the Court of Appeal and the Superior Court erred in law in not following the precedents of this Court to the effect that registration constitutes notice to the world: Meloche v. Simpson (1899), 1899 CanLII 68 (SCC), 29 S.C.R. 375; Groulx v. Bricault (1921), 1921 CanLII 34 (SCC), 63 S.C.R. 32.
Appellants further contended that good faith does not suffice to vest ownership without prescription of ten years as provided for subsequent purchasers in art. 2251 of the Civil Code. In their submission, even if they were in good faith, respondents Germain did not acquire ownership as against appellants, because prescription does not run against minors and the eldest of the appellants, Mariette Denis, did not attain legal age until August 7, 1959, that is less than ten years before the action was brought on May 15 and 16, 1968.
Respondents Germain replied that they were in fact in good faith, as the concurring and unanimous conclusions of the Superior Court and the Court of Appeal found. As to the argument that
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they are deemed in law to have known of the defects in title as a result of the registration, they contended that this was a specious argument because an examination of the registered titles would not have disclosed what the evidence at the trial showed, namely that on August 27, 1947 a secret agreement existed between the tutrix and her mother that the immoveables would be subsequently re-transferred to the tutrix.
Respondents Germain relied primarily on the analysis of the French jurist Solon, Théorie sur la nullité des actes et des conventions, vol. 2, Paris, 1835, at pp. 134 et seq. According to that analysis, the principle that termination of the right of the donor entails termination of the right of the receiver is subject to certain exceptions, including the following: when a deed is not void but merely voidable for a cause which is not apparent, the action in nullity does not reach as far as the bona fide third party. This theory was adopted in Quebec by Trudel, supra, vol. 7, at pp. 215 et seq. Marler also favours this theory, in his Law of Real Property (1932), at pp. 393 and 394.
- Whether defects can be set up against respondents Germain
A. Analysis of facts
The starting point is the notarial deed of March 7, 1956, by which respondent Isabelle Dynes Bigaouette sold the immoveables to the Germains. Assisted by her husband, she stated that she sold, with all legal warranties, free and clear of all charges and hypothecs, to Victor Germain, businessman, and Yves Germain, real estate broker, [TRANSLATION] “here present and accepting”, the immoveables described below. The deed then indicated the seller’s title:
[TRANSLATION] TITLE
The said immoveable belongs to the seller, who acquired it from her mother Dame Sarah Leclerc, widow of Mr. William Herbert Dynes, by a gift recorded before Mr. Arthur Duval, notary, on February 2, 1948, as No. 15,780 of his minutes, duly registered at Quebec City, on February 5 following, as No. 321,716.
Among the charges and conditions, there are the following:
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[TRANSLATION] This sale is made subject to the following charges and conditions, which the purchasers undertake to observe, namely:
3.—Not to require the seller to provide copies of her titles or a title search certificate, and the purchasers shall obtain at their own expense all documents which they may need;
The deed concluded with provisions relating to price and statements concerning the civil and matrimonial status of the parties.
Although he was a real estate broker and this was not his first purchase of land, respondent Yves Germain, who in this one instance was joined by his brother-in-law, respondent Victor Germain, did not have a title search made. He testified that this was not his practice.
There is accordingly nothing in the evidence to indicate that respondents Germain did not believe or had any reason to disbelieve the statement of the seller that she was owner of the immoveables, as a consequence of acquiring them from her mother as a gift. Respondents Germain were in fact unaware of the defects in their predecessor’s title.
However, it is a mistake to conclude, as did the Superior Court and the Court of Appeal, that the source of their good faith, if any, is the Boulanger judgment which authorized the first sale: according to the preponderance of the evidence, respondents Germain only learned of the Boulanger judgment four years after they purchased the immoveables. The judgment was not registered until 1960; additionally, as the deed of sale of March 7, 1956 indicates, the purchasers did not request that the seller provide either a copy of her title or a search certificate; further, respondents Germain had no title search made; it is only in 1960 that they learned from the notary André Cossette that the titles were defective; finally, even if they had learned of the Boulanger judgment before making the purchase, respondents Germain could not have concluded from it that it validated the titles, because as I mentioned above the judgment authorized the tutrix to sell but not to buy.
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If, before buying, respondents Germain had asked the officiating notary, or some other notary or a lawyer, to conduct a title search, their legal advisor would have found what the notaries André Cossette and Jacques Perrin later found.
This is what the notary André Cossette wrote in a report to the Department of Roads dated April 4, 1960. After indicating that he had carried out a title search, and mentioning the sale of August 27, 1947, the gift inter vivos of February 2, 1948 and the sale of March 7, 1956, he went on to say:
[TRANSLATION] YOU will also note that Dame Isabelle Dynes, widow of Henri Denis, sold the said lots by mutual consent and with authorization of the Superior Court, however, to her mother, Dame Sarah Leclerc, widow of William Herbert Dynes (registration No. 321715), and that, subsequently, Dame Sarah Leclerc gave the said lots to her daughter, Dame Isabelle Dynes, who was tutrix for the minor children of her marriage with Henri Denis. In principle, under article 1484 of the Civil Code, a tutor cannot purchase the immoveables under his tutorship even by way of an interposed party. This case therefore involves a purchase by the tutrix through an interposed party, who was the mother of the tutrix, Dame Isabelle Dynes.
The notary Jacques Perrin, in a report to the Department of Roads dated December 14, 1962, wrote:
[TRANSLATION] The ownership titles in these two immoveables are vitiated by the fact of the existence of the two deeds described above, registered as Nos. 321715 and 321716 respectively. These two transactions in fact appear to constitute a transfer by Mrs. John Bigaouette (the widow of Henri Denis) to herself, but through an interposed party, of the immoveable rights of the minor children for whom she was tutrix, which is a breach of article 1484 of the Civil Code.
He stated in a letter to the same department on April 24, 1963:
[TRANSLATION] … the delay in registering the sale of August 27, 1947 by Mrs. Henri Denis, in her capacity as tutrix and personally, to her mother, constitutes a presumption of fact of an intent that this transaction would be followed by a second which was contemplated when the first was undertaken. The registration in fact did not take place until the time the deed re-transferring the
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property from the mother to the daughter was registered.
In view of the presumption of fact represented by the delay in registering the sale by Mrs. Henri Denis, in her capacity as tutrix and personally, to her mother, as aforementioned, we are not in a position to state that the title of Messrs. Germain is good. The opposing party could moreover find in the wording of the subsequent gift from the mother to the daughter two further points which might both constitute further presumptions of an intent to interpose.
If we have correctly understood our function in this matter, it may be summarized in the following proposition: to inform the Department whether it may with complete safety pay Messrs. Germain the indemnity agreed upon.
Our answer is no.
Any competent legal practitioner, who was consulted by respondents Germain and asked to search the titles of the tutrix and then advise them, would have counselled against buying under these conditions. Such a lawyer would, it is true, not have had the formal evidence now at our disposal that the tutrix and her mother, on August 27, 1947, intended to circumvent the law; however, in light of such strong and concurrent presumptions of fact as mentioned above, he would have advised respondents Germain that the seller could only give them a defective title, and that by buying they were running the risk of being evicted if the minors asked for the deed to be annulled. Although respondents Germain did not know of the defect in the seller’s title at the time they made the purchase, this defect was apparent.
B. The law
It should be said at once that there is no reason to reconsider the earlier decisions of this Court regarding the effects of registration on good faith, as it was suggested the Court should do.
It is true that this line of authority has been criticized: Albert Mayrand, “Bonne foi et prescription par tiers acquéreurs”, (1942) 2 R. du B. 9 and 151, at pp. 158-64; Pierre Martineau, La Prescription, University of Montreal Press, 1977, at pp. 132-144. It has also not always been followed by the Quebec courts: Darling v. Bricault (1924), 37
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Que. K.B. 388; Morin v. Vallée (1939), 68 Que. K.B. 194; Roberge v. Bergeron (1939), 69 Que. K.B. 532.
However, this case does not relate to ten-year prescription with title and in good faith, and it could not be a basis for the revision of the decisions of this Court on the point, if that were desirable.
Furthermore, when we examine from the standpoint of principle the legal analysis and precedents cited by respondents, the effect of which is to protect subsequent purchasers in good faith from the voiding of their predecessor’s title, it can be seen that, according to that legal analysis and precedent, good faith does not suffice to protect third parties when the defects in title appear in the registry office.
I am therefore prepared to assume, for the purposes of discussion, but without deciding the point, that the presumption of bad faith recognized by earlier decisions of this Court can be reversed and that respondents Germain succeeded in reversing it by establishing without contradiction that they did not go to the registry office. The evidence in fact showed no dishonest intent on their part, although it indicated that they were extremely careless. I will return to this below.
According to traditional theory, no one may in principle pass on more than he has himself, and if a person’s title is vitiated by some cause which renders it voidable, it can only be transferred subject to that defect; if the voiding is requested, it will be effective even against a bona fide third party purchaser. The latter will then have a remedy against their predecessors in title, based on the warranty against eviction. Article 2038 of the Civil Code is an application of this general principle. When the legislator wishes to make an exception to the principle in order to protect third parties, he does so expressly as in art. 870 of the Civil Code, regarding the ostensible heir, art. 1038, regarding the Paulian action, or art. 2098, regarding priority of registration.
This is the traditional theory which the Superior Court applied in the only two cases to which this
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Court was referred and which concerned specifically minors and third parties.
The circumstances of the first case are strangely similar to those of the case at bar. This was McGregor v. Canada Investment and Agency Co., supra. By fraudulent schemes, the mother and tutrix of plaintiff arranged for the judicial sale of an immoveable owned by her son and pupil, purchased it herself through interposed parties and then resold it to a bona fide third party. The third party pleaded in defence the ten-year prescription of subsequent purchasers, with title and in good faith, but Pagnuelo J., a judge of great reputation, dismissed this argument on the ground that the prescription had not run because it does not run against minors, and he found plaintiff to be owner of the immoveable.
It was also Pagnuelo J., presiding over the Superior Court in revision, who provided in unanimous reasons of the Court what is perhaps one of the most complete statements of the traditional theory in Lefebvre v. Goyette (1892), 2 C.S. 203. A hypothecary creditor was challenging a scheme of collocation: his hypothec had been granted by a former tutor over an immoveable which the latter had purchased from his former pupil by a settlement involving the rights of succession to which the former minor was called. It was alleged that the settlement was prior to the detailed accounting by the tutor and was therefore voided by art. 311 of the Civil Code. The Court ruled against the nullity and allowed the contestation because adequate accounts had in fact been rendered before the settlement. However, it also answered an alternative argument of the creditor, namely that the defects, if any, were not apparent and could not be set up against him because he was a bona fide third party. The Court dismissed this alternative argument in what may be regarded as an obiter dictum; but this obiter is of great weight, in view of the reputation of its author, the fact that it was deliberately stated, and the unanimity of the Court. I find it necessary to cite lengthy extracts, to be found at pp. 215-220:
[TRANSLATION] It is an axiom of law that no one can transfer to another any greater right to a thing than he has himself. For the same reason, the Civil Code (art.
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- states that “Persons whose right to an immoveable is suspended by a condition, or is determinable in certain cases or is subject to rescission, can only grant hypothecs upon it which are subject to the same conditions or to the same rescission.”
Some authors, inter alia Solon (Nullité, vol. 2, p. 148) and Delvincourt (vol. 2, p. 123, No. 1), and some decisions have taken the view that this rule was not applicable to third parties who, seeing a title which had all the appearances of reality, dealt in good faith with a wrongful possessor and complied with all the formalities required by law in its regard. Such an eviction would undermine the confidence which must prevail in agreements and the stability of immoveable transactions.
This argument is not admissible in view of the generality of the phraseology in art. 2038 C.C.; it formally contradicts the maxim: “no one may transfer to another more right to a thing than he has himself.”
This rule is only modified in the case where the legislator has positively created an exception (Cass. July 26, 1826, Sirey 27, 1, 100).
Thus, the ostensible heir who is in possession of the succession can perform all acts of the true owner, and payments made to him in good faith are valid as against heirs or legatees who present themselves subsequently (article 870 C.C.). Similarly, the rescission of an act performed to defraud creditors does not prejudice onerous purchasers in good faith, pursuant to the rule stated in article 1038 C.C. that “An onerous contract made with intent to defraud on the part of the debtor, but in good faith on the part of the person with whom he contracts is not voidable; saving the special provisions applicable in case of insolvency of traders”.
Since the person contracting onerously in good faith is continued in his hypothec or purchase, although in entering into the contract the seller or debtor intended to defraud his creditors, it must be concluded that if he had known the intent of his seller to defraud his creditors, the onerous title which he would pass on to a bona fide third party should be upheld as his own would have been if he had been in good faith.
The principle stated in article 1038 is that the bona fide third party purchaser, whether the first or second purchaser, must be protected when the deed is rescinded for a fraud on the creditors.—This is thus an exception to article 2038.
If it were true to say, with the Court of Appeal and Solon, that the sub-purchaser should be protected when he contracts in good faith with the ostensible owner, who
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is in possession of the immoveable, pursuant to a title which is good on its face, and has been duly registered, voidable and not fundamentally void for any apparent cause, it would be necessary to maintain all dispositions to a third party, when the deed is rescinded for lesion, mistake, violence or fraud; it is clear that under ancient and modern law and the almost unanimous opinion of writers in all these cases, rescission of the title results in voiding dispositions made by the person whose title is rescinded for one of these causes.
Solon, at No. 156, states in principle that in the case of a nullity which results from a defect in the obligation, the deed or the title, the rescission will affect a third party. As an example of this he gives the case of rescission for lesion.
However, in all cases the deed is merely rescindable and the title is not vitiated by any apparent defect; the rights acquired by third parties disappear.
Applying these principles to the case at bar, I conclude that the settlement between the tutor and his pupil, now of legal age, having been declared void by law, the resulting rescission affects third party purchasers because it is derived ex causâ antiquâ et necessariâ, that it operates in itself and in its essence on the deed to which it applies; the disposition is fundamentally vitiated.
The purpose of the law, in creating incapacities, was to protect persons under incapacity against their ignorance, their inexperience or the pressures which they might encounter. This purpose can only be attained if the nullity, resulting from the person of the contracting party, is effective in whatever hands the subject of the contract passes into.
The contracting party’s incapacity attaches to his consent a defect which follows the subject of the contract in whatever hands it passes into.
It is this traditional theory which Mignault adopts in his Le droit civil canadien, vol. 5, at pp. 252-54, following on this point the majority of the French writers. See, for example, Baudry-Lacantinerie and L. Barde, Traité théorique et pratique du droit civil, vol. 14, Des Obligations III, 3rd ed., 1908, No. 1980, at p. 339; Aubry and Rau, Cours de droit civil français, vol. 4, 6th ed., 1942, No. 336, at p. 383; R. Demogue, Traité des obligations en général, vol. 1, 1923, No. 374, at p. 587. As
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Pagnuelo J. observes, even Solon—who is cited by respondents Germain as an authority—recognizes the general principle. However, whereas the traditional theory requires that exceptions to the principle be express, as in the case for example of the Paulian action, Solon tends to generalize the exceptions and make them systematic.
The following are the extracts from Solon which respondents Germain cite in their factum and on which they rely. These texts are found at pp. 135, 147, 148 and 150 of Solon’s treatise on the nullity of deeds and agreements:
[TRANSLATION] The legislator might understandably have said to the contracting parties: “If you contract without complying with the formal requirements of the law … your undertakings will have none of the effects that you intended to produce”.
This observation can in no way be addressed to a third party who, seeing a title having all the appearance of reality, deals in good faith with a wrongful possessor, and fulfils all the formal requirements of the law toward him. It would be unfair to dispossess this third party in any circumstances, for causes of which he was in no way cognizant, and which the law did not put him in a position to know. Such an eviction would usually be dangerous; the possibility of it, and the concealed obstacle implicit in any deed, would undermine the confidence that should prevail in agreements and in their stability; the most serious hardship would be occasioned by a law which gave absolute force to the maxim “termination of the right of the donor entails termination of the right of the recipient”.
When a deed is in no way void, but merely voidable or rescindable, for a cause which is in no way apparent, an action in nullity and rescission cannot affect third parties who have dealt in good faith and completed the formal requirements to inform persons who may have rights against the thing which is the subject of the contract, or in other words, affect those who have observed the requirements set down by law.
Everyone agrees on the need for society to validate a purchase made without fraud by one of its members, observing all the legal requirements for making such a purchase irrevocable. The basis of such a transaction is public confidence; the public interest requires that it should not be mistaken.
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By what reversal of ideas and principles do we arrive at a point where such confidence is mistaken, where the security of the purchaser is only partial? Could anyone possibly argue that there is a definite risk in the law, an invisible trap which even the most cautious person could not avoid? How is it possible that someone who has made his purchase without any form of concealment and who has taken the legal measures necessary to determine the rights of third parties, to enable the latter to exercise these rights, has to fear an action in nullity or in rescission? Above all, how is it possible that they should have this fear for the ten-year period which is ordinarily the length of an action in nullity …
If this were the case, transactions would be impossible, public confidence would be at an end, and the law made powerless.
In my opinion, these extracts are of no assistance to respondents Germain, who though in good faith were not, in view of the entries made in the registry office and the presumptions of fact in the circumstances, evicted for causes “which the law did not put them in a position to know” or “for a cause which is in no way apparent”. Respondents Germain also did not encounter a “concealed obstacle”, they did not fall into “an invisible trap which even the most cautious person could not avoid”, and it cannot be said of them that they took “the legal measures necessary to determine the rights of third parties”. Respondents Germain therefore do not fall within the exception made by the only writer whom they have cited as an authority for an exception to the general rule.
Respondents Germain also referred the Court to a large number of judgments of the Quebec courts in which, it is true, the latter tempered the severity of the rule “resoluto jure dantis resolvitur jus accipientis” in order to protect bona fide third parties, in immoveable matters, against non-apparent relative nullities.
I pass over the rather numerous cases of Paulian actions because they are covered by an express provision, art. 1038 of the Civil Code. However, some of these cases refer to Solon rather than to art. 1038: Normandin v. Les Religieuses Carmélites d’Hochelaga (1883), 3 D.C.A. 329.
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The precedents to which the Court was referred include cases in which third parties were protected against nullity on account of fraud other than the fraud contemplated in the Paulian action: see, for example, Lafleur v. Donegani (1849), 12 R.J.RQ. 70; Light hall v. Craig, (1884) M.L.R. 1 Q.B. 275; Mêthé v. Gervais (1924), 38 Que. K.B. 28; Payette v. Baird (1940), 78 C.S. 371. However, these precedents are not uniform: Ménard v. Roy (1921), 32 Que. K.B. 350.
In other cases, the courts have tried to protect third parties against relative nullity resulting from error: Lamarche v. Bourbeau (1921), 27 R. de J. 481; Rose v. Pinsonneault (1927), 65 C.S. 287.
In still other cases, the courts have protected third parties against nullity resulting from simulated contracts (Samson v. Samson (1896), 9 C.S. 386; Little v. Reaycraft (1917), 24 R.L. n.s. 8), the nullity of deeds of the ostensible heir (Morin v. Mercier (1899), 16 C.S. 35; Banque d’épargne de la cité et du district de Montréal v. Viau, [1976] C.S. 901), the registration of wrongful discharges (Carpenter v. Déry (1877), 5 Q.L.R. 311; Latulippe v. Grenier (1898), 13 C.S. 157); but here again the decisions have varied and have sometimes been against the third party: Gervais v. Charbonneau et Rousseau (1910), 38 C.S. 330.
I have only found one other case in which incapacity is mentioned: Ouellet v. Rochette (1883), 9 Q.L.R. 289. A sale of an immoveable had been annulled at the trial level because the seller was an imbecile and was under the influence of the buyer. The latter had earlier granted a hypothec to a bona fide third party. It was held that the trial judgment could not be set up against the creditor, who had not been a party to it, and the argument turned primarily on res judicata. It should also be noted that the incapacity in question was not that of a person subject to interdiction, that is an incapacity protected by a curator-ship, as that of minors is by tutorship.
In these judgments, reference is sometimes made to Solon (for example Méthé v. Gervais, supra) or equity; often, however, to mitigate the rigour of the traditional theory, emphasis is placed on the innovation made in our laws by registration
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and the need to protect public confidence in this system of publication of real rights, by preferring those who have relied on the entries made therein: Payette v. Baird, supra.
I refer to all these judgments and decisions without expressing any opinion as to their merits, in general or in particular. In my view, they do not help respondents Germain any more than does Solon’s theory: in each case where third parties have been protected, the defects in title were not apparent in the registry office; in none of them did the Quebec courts reject the traditional theory and protect bona fide third parties when the defect in title could have been discovered.
Furthermore, an important judgment by the Court of Appeal for Quebec, affirmed by this Court, is diametrically opposed to the position taken by respondents Germain: this is Carignan v. Boutaric, [1963] Que. Q.B. 222, affirmed by a majority decision of this Court which is not reported but is mentioned sub nom. Legault v. Carignan, [1964] S.C.R. vi. It was held that the annulment of the sale of an immoveable on account of error can be set up against a bona fide third party purchaser where the error is apparent. The facts of that case may be summarized as follows.
Boutaric was the owner of an immoveable which he had inherited from his first wife, as he was her universal legatee. The will was registered and so was a statement of transfer to Boutaric. After some twenty years, Boutaric finally forgot that his wife had made a will and believed that she had died intestate, thus leaving him an undivided one-third share in the immoveable and an undivided two-thirds share to her daughter Thérèse Boutaric. Under this misapprehension, he sold his undivided rights to his daughter in a contract of sale which stated that Angélina Carignan, his wife, had died intestate leaving as her sole heirs J.A. Boutaric, one-third, and their daughter Thérèse, two-thirds. Thérèse Boutaric sold the immoveable to Rita L., who resold it to Thomas B., who resold it to Jean-Paul Clermont, one of the mis en cause.
Plaintiff was the second wife of Boutaric, and his universal legatee. At her request, the sale by
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Boutaric to his daughter was annulled on account of error, and the subsequent sales were also annulled, as a consequence of the annullation of the first sale.
The mis en cause Clermont, whose abandonment was being requested, stated that he submitted his rights to the Court, but he filed a submission disputing the action in the Superior Court, in the Court of Appeal and in this Court. In the submission filed in this Court, he pleaded good faith and cited the authority of Solon.
Owen J.A., who wrote the reasons for the majority in the Court of Appeal, did not mention Solon but wrote at p. 230 regarding the mis en cause:
The present holder of the immoveable property, Clermont, even though in good faith, had no better title than those through whom he acquired […]The defect in the title could have been readily ascertained at the registry office.
Owen J.A. questioned the good faith of the plaintiff as to another part of her claim. Tremblay C.J.A. concurred in the opinion of Owen J.A., except on the latter point, on which he made no ruling. Badeaux and Rivard JJ.A. concurred in the opinion of Owen J.A. without reservation. Casey J.A. dissented.
In this Court Taschereau C.J., speaking for the majority, adopted the reasons of Owen J.A. subject to the reservation made by Tremblay C.J.A. Cartwright J., as he then was, dissented.
I find this precedent to be conclusive against respondents Germain because the defect in title is certainly no less apparent in the case at bar than that in Carignan v. Boutaric, supra.
Respondents Germain did not suggest to the Court any reason, precedent or writer that could justify its discarding the general principles solely because they were bona fide third party purchasers. It may even be doubted that this could ever be possible on this ground against minors. The law takes an infinite number of precautions to protect them. It would be too easy to deprive them of that
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protection if all the tutors had to do was find bona fide third party purchasers.
I therefore conclude that the nullity of the purchase by the tutrix can be opposed to respondents Germain.
There is also a further reason for coming to this conclusion, in the particular circumstances of the case at bar. I have referred to this above: it is the lack of care shown by respondents Germain. They undoubtedly did not have any duty to have a title search conducted by a legal advisor before buying. Their good faith is undoubtedly not affected by their not having done so. However, by preferring to save that expense, they agreed to run a heavy risk against which they could have easily protected themselves. As the risk which they ran in fact materialized, they must, in my opinion, bear the consequences of it and not transfer them to appellants, who at the time were subject to incapacity, and who were unable to defend themselves.
Respondents Germain argued for fins de non-recevoir on the ground that appellants did not offer to restore them to their original position, as by offering to reimburse the part of the price which they had received or which they were entitled to receive from their tutrix, and to indemnify them for the expenses incurred in maintaining the immoveables.
In my view, there is no basis for these fins de non-recevoir. If respondents Germain are entitled to a reimbursement of the price, it must be sought from the tutrix and not from appellants, who are not entitled to this price if they succeed in having the sale annulled as to their undivided share of the immoveables. As to the expenses which respondents Germain may have incurred in preserving the immoveables, there is absolutely no evidence on this point; respondents Germain retain their remedies, if any, against appellants.
Respondents Germain further argued that appellants’ statement of claim lacked an essential allegation regarding the fact that the agreement between respondent Isabelle Dynes Bigaouette and her mother dated back to at least the sale of
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August 27, 1947. Appellants requested leave to clarify their statement of claim on this point, and counsel for respondents Germain objected. I would not hesitate to grant leave to amend if I thought it necessary. After referring to the relevant deeds, the statement of claim specifically alleged in paragraph 12 a breach of art. 1484 of the Civil Code, because the tutrix had purchased through an interposed party the property of those over whom she was appointed. These allegations appear to me to be sufficient.
- Whether defects can be opposed to the Attorney General
The Attorney General was informed of the defects in title before paying the expropriation indemnities. The least that can be said is that his position with regard to appellants can be no better than that of respondents Germain. The defect in title can be opposed to him also.
Appellants are no longer disputing the title of the Attorney General. Further, art. 1066v of the Code of Civil Procedure in force when the first two expropriations were made provides that depositing the notice of expropriation in the registry office
shall convey to the Government of this Province the immoveable or real right so described, free from any encumbrance other than the obligation to pay the indemnity which may be awarded, …
Article 792 of the Code of Civil Procedure in effect when the third expropriation was made is similar. Further, the right to the expropriation is almost never disputed when the expropriating party is the government of the province.
However, appellants are correct in claiming from the Attorney General the expropriation indemnity to which they are entitled. The Attorney General will have to make some arrangement with respondents Germain if he has paid them more than was owed to them.
VI—The case of appellant Mariette Denis
Appellant Mariette Denis is seeking to have her intervention in the deed of June 17, 1960 annulled on account of fear and violence.
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Certain dates must be clarified.
On May 5, 1960 appellant Mariette Denis participated in a family council presided over by the notary André Cossette. It was the family council which preceded the Joli-Cœur judgment and recommended that respondent Marcel Cloutier be appointed as tutor ad hoc, and that the expropriated portion be conveyed without consideration to Her Majesty the Queen in right of the Province of Quebec. The notary Cossette prepared an authentic deed which contained the following statement:
[TRANSLATION] By these presents Mariette Denis, now of legal age, and their mother, Dame Isabelle Dynes, have promised to convey to Her Majesty without consideration all their rights, titles and interests in the said immoveables.
To this deed en brevet is appended a document titled “Consent”. It is also dated May 5, 1960, and it bears the signature of appellant Mariette Denis. Respondent Yves Germain and the notary Cossette countersigned as witnesses. By this document, appellant Mariette Denis undertook to convey without consideration all her rights, titles and interests in the expropriated portion.
It must be observed that very clear evidence is necessary to annul on grounds of fear and violence a conveyance made in a private and a notarial deed (those of May 5, 1960), which is itself mentioned in another notarial deed (that of June 17, 1960). I refer in this regard to the following passage from Davis v. Kerr (1890), 1890 CanLII 50 (SCC), 17 S.C.R. 235, at p. 250:
As to the contention that she consented to sign this deed only through fear and pressure, I am of opinion with the Superior Court, and Tessier and Bossé JJ. in the Court of Appeal, that she has not proved it. A plea of this nature, to destroy a solemn deed received by a public officer, cannot prevail but on the clearest evidence. The only witnesses on the point are the defendant herself, whose testimony must be read out of the record, her sister, who is herself a defendant on an hypothecary action where the same deed of ratification is attacked by her on the same ground, and Mrs. Fields, their foster mother, whose evidence is so palpably biassed that it is not surprising that the learned judge before whom the evidence was taken did not rely on it.
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From her testimony, appellant Mariette Denis did not sign any documents at the notary’s office on May 5, 1960, but the following day or on some subsequent date during or following an interview which Joli-Cœur J. gave her and respondent Marcel Cloutier.
Appellant Mariette Denis further testified that her consent was subsequently obtained, inter alia, by pressure exerted on her by her mother and her brothers and sisters. According to the trial judge, [TRANSLATION] “it was established […] that her mother strongly insisted that on May 5, 1960 she should sign the notarial declaration in the office of the notary André Cossette […] together with the document titled ‘Consent’ attached thereto”. Respondent Isabelle Dynes Bigaouette insisted because payment of the balance of the selling price still owed to her apparently depended on this operation.
However, this fear and violence is not capable of vitiating the consent of appellant Mariette Denis in view of art. 997 of the Civil Code:
- Mere reverential fear of a father or mother, or other ascendant, without any violence having been exercised or threats made, will not invalidate a contract.
A fortiori the Court must disregard the insistence or pressure brought to bear by the minor brothers and sister of appellant Mariette Denis.
What is more significant is the statement, by appellant Mariette Denis, that Joli-Cœur J. said to her: “Will you prefer to sign or send your mother to prison?” This statement is corroborated by the testimony of respondent Marcel Cloutier.
The trial judge said the following in this regard:
[TRANSLATION] In this Court, plaintiff Mariette Denis repeated essentially what she had said in her preliminary examination: she maintained that the next day she went to see Joli-Cœur J. in his chambers in the courthouse and that the latter said to her: “So, you don’t want to sign?”—I said: “No”—He said: “Will you prefer to sign or send your mother to prison?”—I started crying, I signed, and I left—that is all that happened.
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The notary André Cossette remembers clearly that plaintiff Mariette Denis wanted to meet with the judge after the family council was held on May 5, 1960. He said:
I was certainly in the judge’s chambers with Mariette Denis—she was there for some reason; my recollection is not exact, except that she was at the judge’s office.
The documents which are included in the record as Exhibit P-16, namely the notarial declaration of the family council and the consent signed by Mariette Denis, are dated May 5, 1960. It therefore seems unlikely that the girl was required to give a signature at the courthouse after meeting with Joli-Cœur J. The only plausible explanation lies in the fact that the signature of Mariette Denis was placed on the two documents, the notarial declaration and the consent, not before the notary in his office but in the judge’s chambers or in a room adjoining those chambers. In our opinion, this is evidence which seeks to squarely contradict the documents written by the notary André Cossette, namely the notarial declaration and the document entitled “Consent”, documents which were dated May 5, 1960. This evidence is apparently inadmissible under Art. 1234 C.C., which provides that “Testimony cannot in any case, be received to contradict or vary the terms of a valid written instrument”.
Defendant Marcel Cloutier, the tutor ad hoc of the other Denis children who were minors at that time, was heard as a witness. He allegedly accompanied Mariette Denis to the chambers of Joli-Cœur J. It is clear that this witness only remembered one thing, namely that the judge told his niece Mariette Denis “that his mother would go to prison if she did not sign”. The impression resulting from this testimony is that his memory is absolutely blank except regarding the fact that the judge threatened Mariette Denis.
The trial judge therefore found it “unlikely” that appellant Mariette Denis was called on to give her signature at the courthouse, and he found the memory of the tutor ad hoc “absolutely blank” except on this specific point. These are findings regarding the credibility of witnesses, a matter concerning which an appellate court should rely on the trial judge, who has seen and heard the witnesses. That suffices as a basis for dismissing the specific conclusions of appellant Mariette Denis and her claim relating to the first expropriation.
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However, she retains her rights to the two other expropriation indemnities and her rights in the residue of the immoveables.
VII—Whether the Joli-Cœur judgment defective
This judgment relates only to the first expropriation. It does not affect the other points at issue.
As I indicated above, respondent Isabelle Dynes Bigaouette first requested, by a motion dated April 23, 1960 and submitted to a judge of the Superior Court, to be authorized in her capacity as tutrix to her minor children to convey the rights, titles and interests of the latter to Her Majesty in right of the Province of Quebec. Joli-Cœur J. found this procedure inadequate: he required that a family council be held, a tutor ad hoc appointed and the motion served on the various interested parties.
In order to appreciate the nature of the Joli-Cœur judgment and of the deed of June 17, 1960 authorized by it, this judgment must be cited almost in its entirety:
[TRANSLATION] WHEREAS by judgment rendered on January 8, 1945, (case No. 8,975) applicant was appointed tutrix to Mariette, Lisette, Wellie, Jeannot and Adjutor Denis, the minor children of her first marriage with the late HENRI DENIS, and LUCIEN DYNES was appointed subrogate-tutor;
WHEREAS by this judgment the said tutrix was authorized to accept, under benefit of inventory, for the said minors, the intestate succession of their late father, the said HENRI DENIS, who died on December 23, 1944.
WHEREAS by judgment rendered on August 21, 1948, by Oscar Boulanger, J.S.C., applicant was authorized in her said capacity as tutrix to sell by mutual consent the immoveable rights of her pupils in the immoveables owned by her jointly with her said minor children, the said immoveables being known and designated as Nos. eighty-eight and eighty-nine (88 & 89) of the official cadastre for the parish of Ste-Foy, county of Quebec City, excluding the portions sold, the whole without buildings thereon;
WHEREAS under the said judgment applicant, acting personally and in her said capacity as tutrix for her minor children, sold the said immoveables by mutual
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consent to her mother, Dame Sarah Leclerc, the widow of William Herbert Dynes, by deed of sale concluded before Mr. Arthur Duval, notary, on August 27, 1947, a copy of which was registered at Quebec City on February 5, 1948 as No. 321715;
WHEREAS applicant acquired the said immoveables from her mother, the said Dame Sarah Leclerc-Dynes, by the terms of a deed of gift done before Mr. Arthur Duval, notary, on February 2, 1948, a copy of which was registered at Quebec City on February 5, 1948 as No. 321716;
WHEREAS applicant, who was then remarried to Mr. John Bigaouette and authorized by him, sold to Victor and Yves Germain the said immoveables, as appears from a deed of sale done before Mr. Emile Boiteau, notary, on March 7, 1956, a copy of which was registered at Quebec City on March 12, 1956 as No. 431161;
WHEREAS the Department of Roads of the province of Quebec requires a portion of the said lots 88 and 89, described above, for the construction of Blvd. Henri IV and Blvd. Charest, as appears from a notice of expropriation registered at Quebec City on May 17, 1957, as No. 429389;
WHEREAS there are doubts as to the ownership titles of the present owners of the immoveables described above, since the deeds registered at Quebec City as Nos. 321715 and 321716 may be interpreted as contrary to the provisions of Art. 1484 of the Civil Code, prohibiting a tutor from purchasing either by himself or by a party interposed property over which he is appointed;
WHEREAS by a motion dated April 23, 1960 applicant asked one of the honourable judges of the Superior Court for the district of Quebec City for leave to convey to Her Majesty Queen Elizabeth II, in right of the province of Quebec (Department of Roads), in her capacity as tutrix to her still minor children, Lisette, Wellie, Jeannot and Adjutor Denis, all rights, titles and interests in the following immoveables:
WHEREAS prior to allowing the said motion, the Honourable J. ACHILLE JOLI-CŒUR, J.S.C., required that a tutor ‘ad hoc’ be appointed for the said minor children and the said motion be served on MARIETTE DENIS, then of legal age, on VICTOR and YVES GERMAIN, the present owners, and on the Department of Roads of the province of Quebec;
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WHEREAS the said motion was duly served on the said Mariette Denis, Victor and Yves Germain and the Department of Roads of the province of Quebec;
IN VIEW OF the affidavit and consent by applicant to intervene personally in this conveyance, and of her daughter Mariette Denis, now of legal age;
IN VIEW OF section 91 of the Quebec Railway Act (chapter 291, R.S.Q. 1941), which applies to the Roads Act under section 104 of the latter Act (chapter 141, R.S.Q. 1941);
IN VIEW OF the unanimous advice of the said family council;
WE ALLOW the said motion; WE HOMOLOGATE the proceedings and advice of the said family council;
WE APPOINT as tutor ‘ad hoc’ to the said minor children their maternal cousin, MARCEL CLOUTIER;
WE NOTE the acceptance by the said tutor ‘ad hoc’ of the said responsibility and the oath taken by him, before the aforementioned notary, to fulfil its duties faithfully and in accordance with the law;
WE AUTHORIZE the said MARCEL CLOUTIER, in his capacity as tutor ‘ad hoc’ to the aforesaid minor children, to convey without consideration to Her Majesty Queen Elizabeth II, in right of the province of Quebec (Department of Roads), with the intervention of applicant, authorized by her husband, and of the said Mariette Denis, now of legal age, all titles, rights and interests of the said minors in the immoveables described above.
QUEBEC CITY, May 16, 1960.
Before considering the arguments made on either side for and against the Joli-Cœur judgment, it is appropriate to examine the legislative provisions relied on in that judgment and in accordance with which it seems to have been rendered. These are s. 104 of the Roads Act (R.S.Q. 1941, c. 141) and s. 91 of the Quebec Railway Act (R.S.Q. 1941, c. 291).
Section 104 of the Roads Act is the only provision of Division XII of that Act, entitled “Expropriations”. It states:
- The provisions of sections 91, 92, 93, 94 and 98 of the Quebec Railway Act (Chap. 291) shall apply to the acquisition of land or servitudes which the Minister of Roads is authorized to effect under this act.
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If a voluntary sale cannot be effected through failure of the parties to agree, all questions arising shall be settled by expropriation proceedings.
For the purpose of this section, the above-mentioned provisions of the Quebec Railway Act are amended by replacing therein, wherever they occur, the words “the company”, by the words “the Minister of Roads”, and the word “railway”, by the words “highway, road or main communication road”, as the case may be.
Section 91 of the Quebec Railway Act provides:
- All corporations and persons, usufructuaries, institutes, tutors, curators, executors, administrators and all other representatives, not only for and on behalf of themselves, their heirs and successors, but also for and on behalf of those whom they represent, whether infants, issue unborn, lunatics, idiots, married women, or other persons, seized, possessed of, or interested in any lands, may sell and convey to the company all or any part thereof.
In all cases, however, in which the parties above mentioned have no legal right to sell and convey the ownership of the said lands, they shall, after having given due notice to the parties interested obtain, from a judge of the Superior Court, permission to sell and convey such lands.
The judge shall give the necessary orders for the investment of the price thereof, in such manner as he shall deem expedient, and in accordance with the laws of the Province, to protect the rights of the owner of such lands.
As I understand it, the purpose and effect of the latter provision is, inter alia, in cases of expropriation for building roads, to enable certain persons who, for other matters, have only limited powers of administration or disposal, to sell land to the Minister of Roads by mutual agreement, with the reduced formal requirements of permission of a judge of the Superior Court, after giving notice to the interested parties. Thus, the tutor may be authorized by a judge of the Superior Court to sell and convey this land to the Minister without taking the advice of the family council, and of course without having to show that it is necessary or advantageous for the minor to sell, as would otherwise be required under arts. 297 and 298 of the Civil Code. The tutor is further relieved of the
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formalities provided in arts. 1341 et seq. of the Code of Civil Procedure then in effect for the sale of the property of minors, such as sales at auction, a formality which is not compatible with an expropriation.
The first anomaly contained in the Joli-Cœur judgment is that, though it relies on a provision designed to reduce formal requirements, it provides for what this provision does not require, such as the advice of the family council and the appointment of a tutor ad hoc.
What is more serious is that s. 91 of the Quebec Railway Act in no way empowers a judge of the Superior Court to authorize a tutor [TRANSLATION] “to convey his rights to the Minister without consideration” in his capacity as tutor. He can only authorize the tutor to “sell and convey” the immoveables to the Minister and, as a sale presupposes a price, para. 3 of s. 91 imposes on the judge a duty to give the orders necessary for reinvestment of the purchase price. The Joli-Cœur judgment contravenes this requirement by leaving nothing to be reinvested.
If this judgment is to be taken literally, it authorizes a gift of the minor’s property, and appellants are right in maintaining that it contravenes art. 763 of the Civil Code, which formally prohibits the minor from making a gift inter vivos, and his tutor from making a gift of the property entrusted to him. Even a judgment accompanied by formalities not required by law cannot permit what the law prohibits.
I therefore find that the Joli-Cœur judgment cannot be based on the actual provision pursuant to which it was rendered. However, this finding is not conclusive. The Joli-Cœur judgment need not necessarily be taken literally. It is necessary to look at the real nature rather than the form of this judgment and of the deed of June 17, 1960 which it authorized, which refers to it expressly and to which it is attached. If this judgment and deed are anything other than what they appear to be, it is still conceivable for them to rest on some provision other than s. 91 of the Quebec Railway Act.
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As indicated above, appellants in fact contend that the Joli-Cœur judgment authorized an actual gift of property belonging to minors, and that it must accordingly be annulled. Lamer J.A. rejected this contention [at p. 547]:
[TRANSLATION] … I am of the opinion that this is not really a judgment authorizing a gift inter vivos of the property of minors. It has to be assumed that, so long as there has not been a detailed accounting, appellants could have required that the amount of $3,500 be paid to them for their share of the land, although the evidence at the trial indicated to the Court that this amount paid by their grandmother in fact came from their mother.
This is one of the reasons why Lamer J.A. refused to revoke the Joli-Cœur judgment.
Respondents Germain argued that the Joli-Cœur judgment does not authorize a gift, because the minors were not owners of the expropriated portion. In their submission, it was actually a transaction designed to avoid a lawsuit with them which was authorized by the Joli-Cœur judgment, in accordance with arts. 307 and 1918 of the Civil Code:
[A tutor cannot transact in the name of the minor unless he is authorized by the court, the judge or the prothonotary, on the advice of a family council. Accompanied by these formalities, transaction has the same effect as if made with a person of age]
Transaction is a contract by which the parties terminate a lawsuit already begun, or prevent future litigation by means of concessions or reservations made by one or both of them.
Respondents Germain further submitted that art. 1918 of the Civil Code does not require reciprocal concessions by all parties, conditions which some writers such as Mignault have felt it necessary to add: Le droit civil canadien, t. 8, at p. 303. Respondents Germain noted that, in any case, appellants were thereby guaranteeing their right to a share of the price paid by them to the tutrix, excluding, as Lamer J.A. pointed out, a share of the price nominally received by the tutrix from her mother. This transaction was made by a tutor ad hoc because of the conflict of interests between the tutrix and her pupils. However, authorized by the Court on the advice of the family council, it “has
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the same effect as if made with a person of age”, as provided for by art. 307 of the Civil Code. Under art. 1920 of the Civil Code, this effect is that of a final judgment (res judicata).
The Attorney General agreed with respondents Germain in arguing that the Joli-Cœur judgment did not authorize a gift inter vivos. However, he viewed the operation differently from respondents Germain. In the opinion of the Attorney General, it actually was a deed of ratification or confirmation. In his submission he stated:
[TRANSLATION] If we analyse the facts which gave rise to this judgment by Joli-Cœur J., we find that the judgment was intended purely to record the fact that the ownership title of respondents Germain was valid: it in no way entailed judicial approval for the tutor to convey the property of minors without consideration. The consideration for the immoveables which were the subject of the sale by the tutrix to respondents Germain was paid to the tutrix in due form.
If in fact the minors had some right that could be maintained against their tutrix, it should be exercised against her: as far as respondents Germain are concerned, their consent meant nothing more or less than obtaining:
… From the person selling the property a removal of all obstacles which might limit or threaten their ownership title (1943 C.C.)—judgment by Georges Pelletier J., January 6, 1976, volume 5, page 964.
We respectfully submit that in these circumstances as far as appellants were concerned this was not a gift inter vivos, but a ratification of a legal act done by the tutrix, authorized by the family council and sanctioned by judicial authority. This is why the incapacity referred to by Mignault and Sirois in their respective treatises does not apply to the case at bar.
In my view, the approach taken to the case by the Attorney General is the correct one: it is in fact a ratification or confirmation that is authorized by the Joli-Cœur judgment. However, the Attorney General is wrong in arguing that this confirmation is valid and could be authorized by judgment.
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The Civil Code appears to treat the words “confirmation” and “ratification” as synonyms in arts. 1214, 1008 and 1235, as they read at the time:
The act of ratification or confirmation of an obligation which is voidable does not make proof unless it expresses the substance of the obligation, the cause of its being voidable and the intention to cover the nullity.
A person is not relievable from a contract made by him during minority, when he has ratified it since attaining the age of majority.
In commercial matters in which the sum of money or value in question exceeds [fifty dollars,] no action or exception can be maintained against any party or his representatives unless there is a writing signed by the former, in the following cases:
…
Upon any promise or ratification made by a person of the age of majority, of any obligation contracted during his minority;
The legislator follows current usage on this point, though the writers distinguish ratification from confirmation. They define confirmation as the waiver of an action to rescind and ratification as the approval of an act done without authority. Mignault (supra, vol. 6, at p. 31) writes:
[TRANSLATION] Article 1214 confuses […] confirmation and ratification, which are not the same thing, the first being the waiver of an action to rescind, the second approval of an act done by another without authority.
Langelier is completely in agreement. In his text De la preuve en matière civile et commerciale (1894), he writes at pp. 205-06:
[TRANSLATION] ACTS OF CONFIRMATION
- Art. 1214 states a special rule regarding acts of ratification or confirmation of voidable obligations.
It is clear that, in this article, ratification and confirmation are confused. However, the two words do not have the same meaning. Ratification is the approval of an act done by another without authority. For example, A gives B a mandate to buy a certain house for him for $5,000; B buys it for $6,000; A learns of this and approves the purchase: this is a ratification.
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Confirmation is the approval of an act which is voidable on account of minority and lesion, fraud, mistake or fear. A, a minor, sells a house to B for $5,000. Even if it is not worth more, he could have the sale rescinded because, in this case, it is subject to restitution even without lesion. When he reaches legal age, he approves the sale: in reality he is performing an act of confirmation, and is waiving the right which he has to bring an action to rescind.
Does the special rule which we shall see apply to both classes of acts or only to acts of confirmation? I believe the answer has to be that it applies to both. I think it is clear that the acts to which art. 1214 are intended to refer are all acts designed to remedy what was defective in an earlier act.
The definition given by André Nadeau and Léo Ducharme to confirmation in the Traité de Droit civil du Québec, vol. 9, at pp. 319 and 320, is as follows:
[TRANSLATION] Confirmation is the waiver by an individual of the right to challenge a voidable act which he decides to approve. The confirmation may be express or tacit. It is tacit if it results from an act which necessarily presupposes that the person doing it intends to waive the right to challenge the voidable act at law. It is express in cases where approval of the voidable act is in accordance with art. 1214 C.C. As it is essentially unilateral, it does not require acceptance by the party against whom the person confirming could have pleaded nullity. Revocation therefore cannot be sought on the ground of an absence of acceptance.
The legislator dealt primarily with confirmation in art. 1214, in the chapter “Of Proof”, but the writers are also agreed in acknowledging that this provision goes beyond the rules of evidence.
Nadeau and Ducharme, supra, at pp. 318 and 319, consider that:
[TRANSLATION] Article 1214 C.C. deals much more with the validity of the confirming or ratifying act than with its probative value. This provision would have been more appropriately located in the chapter on nullity or the rescission of contracts, since it provides a general theory of confirmation. This article goes beyond the subject-matter of evidence.
These writers follow Mignault, supra, vol. 6, at pp. 30-31:
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[TRANSLATION] VII. Acts of confirmation.—The legislator mentions here only probative value, when he should be concerned only with the effect or the validity of the act of confirmation. Under article 1214, “the act of ratification or confirmation of an obligation which is voidable does not make proof unless it expresses the substance of the obligation, the cause of its being voidable and the intention to cover the nullity.” What the legislator meant is that confirmation is only valid in so far as the act recording it expresses the substance of the obligation, the cause of its being voidable and the intention to cover the nullity. Confirmation is a waiver of the right to have an act annulled, and as one is never presumed to have waived his right, it is necessary for the voidable act to be clearly designated, for the defect affecting it to be described and for the intention to remedy this defect to be clear.
Similarly, though art. 1214 speaks only of confirmation of voidable obligations, its scope is more general and there is no reason to think that it does not also extend, for example, to confirmation of voidable contracts, including real rights, moveable and immoveable, which may result therefrom.
It is further necessary to distinguish confirmation from transaction, because they are subject to different systems. Transaction is a contract. Confirmation is a unilateral legal act. Transaction has the effect of res judicata and cannot be avoided for error of law: arts. 1920 and 1921 of the Civil Code. Additionally, confirmation is retroactive to the date of the acts being confirmed. Undoubtedly, confirmation thus has the effect, like transaction, of terminating an actual or potential lawsuit, since the right to plead the nullity of an act is being waived. However, this is an indirect and incidental effect of confirmation: it is not its primary purpose; the primary and essential purpose of confirmation is to remedy the defects of an earlier act.
It can also be said that the two operations differ in that confirmation consolidates an act already performed, but voidable, whereas transaction is a new contract.
The words “transaction”, “confirmation” and “ratification” are not found either in the Joli-Cœur judgment or in the deed of June 17, 1960 authorized by it.
[Page 799]
However, the absence of the word “transaction” is more significant with regard to the intent of the parties than the absence of “confirmation” or “ratification”. Confirmation and ratification may be implicit and, a fortiori, do not require any rigid formula. Transaction is of such a special nature that it might be doubted whether it is an act within the competence of a tutor, but for art. 307 of the Civil Code, a specific provision which allows it, with authorization of the judge or the prothonotary, on advice from the family council. It is therefore customary for judgments authorizing transaction to mention it expressly, as for example, in the case at bar, the judgment of February 25, 1963, which authorized the tutor ad hoc to [TRANSLATION] “transact the rights of the said minors in the aforesaid immoveables, for reasonable and valid compensation”.
Also, in their formal notice of February 5, 1963, following the second expropriation, counsel for respondents Germain at that time said the following:
[TRANSLATION] We are also asking you to call a family council relating to the minor children so as to appoint a tutor “ad hoc” and to make known the ratification of this family council for the minor children. [My emphasis.]
What they were asking was a repetition of the procedure followed in 1960.
Further, even in the factum which they made to this Court and in which they argued that the Joli-Cœur judgment authorized a transaction, respondents Germain’s present counsel, after noting that art. 1918 of the Civil Code does not require reciprocal concessions for transaction, are carried to write:
[TRANSLATION] However, this requirement would not seem to be an obstacle, for in confirming the Germains’ title, appellants confirmed at the same time their right to a share in the price … [My emphasis]
Finally, and most importantly, the Joli-Cœur judgment has all the characteristics of an act authorizing confirmation and follows all the provisions of art. 1214 of the Civil Code: it expressly refers to each of the voidable acts being confirmed, the sale of August 27, 1947, the gift of February 2, 1948 and the sale of March 7, 1956; it mentions
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the cause of nullity, namely infringement of art. 1484 of the Civil Code; finally, it indicates an intention to cover the nullity by action that is as complete and absolute as possible, a direct conveyance to the Province of all titles, rights and interests of the minors in the expropriated portion, that is of all rights which they might have if they took advantage of the action in nullity made available to them by art. 1484, and which by this conveyance they have implicitly but necessarily waived.
I therefore have no hesitation in finding that the Joli-Cœur judgment authorized a confirmation of the voidable acts and that the intervention of the tutor ad hoc in the deed of June 17, 1960, like that of appellant Mariette Denis, was in fact a confirmation of those acts.
It must now be decided whether it is possible to validly remedy a defect like that in question by means of a confirmation during minority. In my opinion, this is a legal impossibility.
It should first be noted that the Civil Code, in arts. 1008 and 1235, provides for confirmation of the acts of the minor only during majority.
André Nadeau and Léo Ducharme wrote (supra, at p. 324):
[TRANSLATION] … for a legal confirmation, there must be legal capacity. The situation at the time of confirmation must be different from that prevailing when the voidable obligation arose. Thus, the person under incapacity can only confirm an act if he has acquired or recovered his legal capacity.
Several French writers also discuss the time at which confirmation becomes possible.
In Cours de droit civil français, vol. 4, 6th ed., 1942, at pp. 390 and 391, Aubry and Rau[^2] state:
[TRANSLATION]
- Time in which confirmation becomes possible
Voidable or rescindable obligations may, in general, be confirmed immediately after their creation.
[Page 801]
Where the vice [defect] which vitiates an obligation, however, relates to an obstacle which exists during a more or less long period, this obligation can be confirmed effectively only after the termination of the cause of nullity; otherwise, the confirmation would be vitiated by the same vice [defect] affecting the original obligation.
Thus, the nullity of a counter-letter by which two spouses seek to modify, after the marriage, their matrimonial regime, cannot be corrected during coverture by an act of confirmation; but this counter-letter is susceptible of confirmation after the dissolution of the marriage.
Finally, it follows from this same principle: that the nullities resulting from violence, error, or fraud by which the consent of the obligor is affected can be set aside only after the termination of the violence and the discovery of the error or of the fraud; that obligations subject to annulment or rescission because of the incompetence of the obligor, can be confirmed by the latter only where he is in a state of competence, unless formalities destined to supply his incapacity have been observed.
Since the confirmation implies renunciation of action in nullity, it can take place only after this action becomes available.
The Mazeaud brothers (Leçons de droit civil, t. 2, vol. 1, 6th ed., 1978, No. 310) are also of the opinion that confirmation should occur at such time as it will itself be free of defects, especially of the defect being remedied (at p. 286):
[TRANSLATION] An act performed by a person subject to incapacity should be capable of being confirmed in due form during the incapacity by the legal representative. However, the prevailing judicial opinion does not appear to recognize this. The Civil Code Review Commission properly wished to permit confirmation by a legal representative (Art. 55, Chap. “Of Legal Acts”). The provision which it recommended was not adopted by the drafters of the statute of December 14, 1964, which amended the provisions of the Civil Code regarding tutorship5.
5 Cf. t. 1, No. 1320.
However, when we turn to the text referred to in the note at the bottom of the page (Leçons de droit civil, t. 1, vol. 3, 6th ed., 1976, No. 1320) we find the following passage (at p. 731):
[Page 802]
[TRANSLATION] A minor who has attained his majority may confirm the act, even if the nullity is due to a breach of the formal rules (art. 1311 C.C.). It would appear that a tutor cannot confirm during the tutorship an act improperly performed by the minor; the tutor should perform this act anew with, if necessary, authorization from the family council.
Colin and Capitant (Traité de droit civil, vol. 2, 1959) appear to be of the opinion that a minor should wait until he attains his majority to confirm an act done by him while he was a minor (at p. 433):
[TRANSLATION] 767.—2. Removal of defect of the act.—The confirmation of a voidable or rescindable legal act can only occur if the defect affecting the act had terminated when the act of confirmation took place. If it were otherwise, the confirmation would be subject to the same imperfection as the act which it seeks to consolidate. We have already seen an application of this idea under article 1311[^3], which provides that the minor must be of legal age if he is to validly confirm an act done by him during his minority. Similarly, article 1115 states that the confirmation of an act which is void on account of violence can only take place when the violence has ceased. An identical solution must apply to all cases of defects in consent or incapacity.
Finally, Planiol and Ripert (Traité pratique de droit civil, vol. 6, 2nd ed., 1952, No. 305) consider the possibility of confirmation when the contracting party is still a minor (at p. 388):
[TRANSLATION] A person subject to incapacity can only confirm an act done during the incapacity if he has acquired capacity (Art. 1311) or if in the confirmation the formalities compensating for his incapacity are observed.
The case at bar is not one in which the minor contracted alone, or one in which some formal requirement was allegedly omitted, and which one could perhaps confirm or begin over during the minority, this time observing the required formality. The case at bar concerns compensating for the incapacity of the tutrix to acquire the property of minors during tutorship, which is absolutely prohibited whatever the formalities used, except in the case of the voluntary licitation of property held in undivided ownership with the pupils.
[Page 803]
The defect which the Joli-Cœur judgment seeks to remedy is the purchase of the property of minors by the tutrix in breach of art. 1484 of the Civil Code. The relative nullity of such a purchase may be pleaded by minors within the deadline provided for the prescription of their action to rescind. What is to be confirmed, therefore, is the title of the tutrix in the immoveables, in order to confirm that of respondents Germain, so that the government of the Province can pay the latter the expropriation indemnity without risk.
The confirmation authorized by the Joli-Cœur judgment has the effect of retroactively validating, during the tutorship, the purchase of the immoveables by the tutrix. I think it is clear that this confirmation is vitiated by the same defect as that which it seeks to remedy. It is a defect which “results from an obstacle that is likely to continue for a more or less lengthy period”, to repeat the language of Aubry and Rau. This period of time is the length of the minority. The defect results from the fact that a tutor is prohibited from acquiring the property of minors during the tutorship. It will only be removed when the tutor-minor relationship ceases; and I do not see how it is possible to validly confirm an act affected by a prohibition which is still continuing at the time of the confirmation.
I therefore find that the Joli-Cœur judgment is vitiated on its face, because it authorizes what the law prohibits.
The question then remains whether, because a judgment is involved, it cannot be rescinded.
The Joli-Cœur judgment is of the same type as those dealt with in Book Six of the Code of Civil Procedure, titled “Non-contentious Matters”. It is a judgment of voluntary jurisdiction and such judgments, according to most writers, do not have the force of res judicata. In his text, De l’autorité de la chose jugée en matière civile (1903), C.A. Chauveau writes at p. 46:
[TRANSLATION] Judgments of voluntary jurisdiction do not have the authority of res judicata. They lack the characteristics which we have required of any judgment that is to have such authority. They do not contain any
[Page 804]
statement regarding a disputed right, and only allow, prohibit or authorize, without recognizing or declaring the existence of a disputed right which may be, with respect to an opposing party, the subject of an order or acquittal. This is the unanimous opinion of the writers, and it has been confirmed by the courts.
See to the same effect Mignault (supra, vol. 6, at pp. 101 and 102), who calls these judgments “acts” rather than judgments, and Nadeau and Ducharme (supra, vol. 9, at p. 453), who write:
[TRANSLATION] The authority of res judicata does not however apply to all our own judgments. It does not extend to judgments of voluntary jurisdiction by the Court (part ten of the Code of Civil Procedure), in which the Court simply allows, authorizes or prohibits something without deciding whether the right exists. Such judgments are partly administrative acts; they are, if you will, semi-administrative and semi-judicial, and this places them at some distance from true judicial decisions, which state the law applicable to the parties. Examples are, inter alia, judgments of tutorship, decisions homologating family council advices authorizing acts, and so on.
If these judgments do not have the force of res judicata, the question arises as to what remedy on appeal can be obtained against those which are defective, like the Joli-Cœur judgment.
Article 26 of the Code of Civil Procedure provides that judgments or orders made pursuant to Book Six are subject to appeal. Book Six of the present Code of Civil Procedure relates to non-contentious matters and contains arts. 862 to 939. Although the Joli-Cœur judgment resembles those dealt with in arts. 885 to 895, regarding the sale of property belonging to incapables, it does not correspond exactly to any of these types of judgments.
Finally, neither the Roads Act nor the Quebec Railway Act provide for an appeal from the permission given in accordance with s. 91 of the latter Act.
It would appear, therefore, that the Joli-Cœur judgment is not subject to appeal, as there can be no right of appeal unless provided for by law. Furthermore, if the Joli-Cœur judgment were subject to appeal, it would be unrealistic to think
[Page 805]
that an appeal, by or for minors, within the time allowed for appealing, could constitute a practical and effective means of causing that judgment to be set aside, bearing in mind the circumstances of this case.
Can use be made of the motion in revocation of judgment provided for in arts. 482 and 483 of the Code of Civil Procedure?
As worded, these provisions appear to apply primarily to judgments of contentious jurisdiction, but it is possible that they also cover judgments of voluntary jurisdiction. It is true that none of the specific causes of revocation which they list is applicable to the Joli-Cœur judgment, but the Court of Appeal has already held in an unpublished decision of March 25, 1974, that this list is not exhaustive: Bossé et Roy v. Laplante, No. 9494 of the Quebec City district.
In any case, a variable but nonetheless controlling line of authority in Quebec recognizes a direct action to annul a judgment, even against judgments subject to appeal and on contentious matters. There is all the more reason for it to be applied to judgments rendered pursuant to voluntary jurisdiction. However, this line of authority requires that the direct action meet the substantive conditions laid down for the motion in revocation of judgment, and therefore, the strict deadlines provided in art. 484 of the Code of Civil Procedure, namely fifteen days to six months as the case may be. These authorities were reviewed by Lamer J.A. in the case at bar, and there is no need to re-examine them here. It will suffice to mention cases such as Kellond v. Reed (1874), 18 L.C.J. 309; Ritchot v. Cardinal (1893), 3 Que. Q.B. 55; Stather v. Bennett (1912), 22 Que. K.B. 290.
If the direct action in nullity is not necessarily the only means of dealing with the Joli-Cœur judgment, it is at least an adequate means, in view of art. 2 of the Code of Civil Procedure.
It is also in accordance with the view of Chauveau, who writes, correctly in my opinion, with regard to judgments of voluntary jurisdiction, that [TRANSLATION] “Their nullity can be pleaded by an action or in pleading”.
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This Court upheld such a plea in Davis v. Kerr (supra). With authorization from the prothonotary, improperly obtained, a tutor made a loan in his pupil’s name but in order to pay his own debts. The pupil was sued to repay the loan by the succession of the lender, and although he was now of legal age and despite the authorization of the Court, had the larger part of the claim dismissed. Taschereau J., rendering the unanimous judgment of the Court, upheld his plea because, inter alia, the improper nature of the judicial authorization was apparent and also because the lender knew through his mandatary the true objective of the tutor. The Superior Court applied the same principles in Hyde v. Mount (1905), 28 C.S. 385.
As in Davis v. Kerr, the Joli-Cœur judgment contains an apparent defect when it improperly authorizes what is prohibited by law.
The proceeding brought by appellants against the Joli-Cœur judgment is therefore sufficient and justified. Should it fail because it was not brought within the time prescribed for motions in revocation by art. 484 of the Code of Civil Procedure?
I do not think so.
The brevity of these procedural deadlines is explained by the need to observe the principle of res judicata.
However, there is no res judicata in the case at bar and the Joli-Cœur judgment, the annulment of which is at issue, is not a true judicial decision, but a type of administrative act which partakes of the nature of the act which it authorizes, namely an act of confirmation. There is accordingly no reason to apply to it the strict deadlines of a contentious proceeding. Actually, it is the prescription deadlines which are appropriate, namely the thirty-year prescription of arts. 2242 and 2243 of the Civil Code.
I therefore think that the Joli-Cœur judgment should be annulled.
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VIII—Conclusions
In my opinion, the conclusion should be as follows:
The appeal is allowed, but as to appellant Mariette Denis Cossette, in part only;
The judgments of the Court of Appeal and of the Superior Court are set aside;
The action of appellants is allowed, but as to appellant Mariette Denis Cossette, in part only;
The following deeds are annulled:
1° The deed of sale by respondent Isabelle Dynes-Bigaouette to her mother, Dame Sarah Leclerc, entered into before Arthur Duval, notary, on August 27, 1947, and registered on February 5, 1948 as No. 321715 in the office of the Quebec registry division;
2° The gift inter vivos by Dame Sarah Leclerc to her daughter respondent Isabelle Dynes-Bigaouette, by deed entered into before Arthur Duval, notary, on February 2, 1948, and registered on the 5th of that month as No. 321716 in the office of the Quebec registry division;
3° The sale by respondent Isabelle Dynes-Bigaouette to respondents Yves and Victor Germain, under a deed entered into before Emile Boiteau, notary, on March 7, 1956 and registered on the 12th of that month as No. 413161 in the office of the Quebec registry division, but only as to the undivided two-thirds of the immoveables described in the deed and owned by appellants in that proportion;
The judgment rendered by Achille Joli-Cœur J. on May 16, 1960, bearing No. 17849 of the record of the Superior Court for the district of Quebec, is annulled, and the application allowed by that judgment is dismissed;
The following deeds are annulled:
1° The sale made by respondents Yves and Victor Germain to the Attorney General, represented by the Honourable Minister of Roads, by deed entered into before André Cossette, notary, at Quebec City on June 17, 1960, and registered on June 18, 1960 in the registry office of the Quebec division as No. 474809, but only as to the undivided four-fifths of two-thirds of the immoveables described in the deed and owned by appellants other than Mariette Denis-Cossette in that proportion;
[Page 808]
2° The sale and discharge made by respondents Germain to the Attorney General on October 29, 1963, by deed before Jacques Perrin, notary, at Quebec City and registered on November 5, 1963 as No. 535922 in the registry office of the Quebec division, but only as to the undivided two-thirds of the immoveables described in the deed and owned by appellants in that proportion;
3° The discharge given by respondents Yves and Victor Germain by deed entered into before Joseph A. Tremblay, notary, at Quebec City on January 22, 1971, and registered in the office of the Quebec registry division on January 27, 1971, as No. 684413, but only as to the undivided two-thirds of the immoveables described in the deed and owned by appellants in that proportion;
- It is hereby declared that appellants are the owners of the undivided two-thirds of the immoveables described below, except for the portions expropriated by Her Majesty the Queen in right of the Province of Quebec on March 17, 1957, October 30, 1961 and September 11, 1969, and excepting also, if applicable, the part of lot 29 sold to Onésime Philippe Brousseau on April 15, 1953:
—Lot No. EIGHTY-EIGHT, in the plan and book of reference of the official cadastre for the parish, now the city, of Ste-Foy, in the county and registry division of Quebec, described as follows in the book of reference:
Irregular in shape, bounded on the northeast by lot 89; on the southeast by lots 86 and 87; on the southwest by lot 84; and on the northwest by the land of a former railroad; measuring two thousand three hundred and fifty-six feet on its southwest boundary; containing an area of thirteen arpents and fifty-seven perches (13 arp., 57 perches);
—Lot No. EIGHTY-NINE, in the plan and book of reference of the official cadastre of the parish, now the city, of Ste-Foy, in the county and registry division of Quebec, described as follows in the book of reference:
Irregular in shape, bounded on the northeast by lot 90; on the southeast by lot 87; on the southwest by lot 88; and on the northwest by the land of a former railroad (lot 89), measuring two thousand one hundréd and eighty-one feet on its northeast boundary; containing an area of eleven arpents and fifty-five perches (11 arp., 55 perches);
With a right of way in perpetuity for vehicles and pedestrians to the Sillery Range public road, as far as the lots which are the subject hereof, and over the lot known and described as No. twenty-eight (28) of the
[Page 809]
official cadastre for the parish of Ancienne Lorette, the said right of way being a servitude created in accordance with the gift hereinafter designated as title by the seller;
—A part of lot TWENTY-NINE (29 part) of the official cadastre of the parish of Ancienne Lorette, bounded on the northeast by a part of lot 28; on the south by the railway (lot 962); on the southwest by a part of lot 30; and on the northwest by lot 29-1; measuring two hundred and fifty-five and three-tenths feet in width, with an average depth of one thousand one hundred and seventy-eight and two-tenths feet; containing an area of eight arpents and seventeen hundredths (8 arp., 17 hundredths).
That part of appellants’ action which asks the Court to annul the intervention of appellant Mariette Denis Cossette in the deed of June 17, 1960 is dismissed without costs;
It is hereby declared that appellants, other than Mariette Denis Cossette, are entitled vis‑à‑vis Her Majesty the Queen in right of the Province of Quebec to four-fifths of two-thirds of the expropriation indemnity due by law as a consequence of the expropriation of March 17, 1957;
It is hereby declared that appellants are entitled vis-à-vis Her Majesty the Queen in right of the Province of Quebec, to two-thirds of the expropriation indemnity due by law as a consequence of the expropriations of October 30, 1961 and September 11, 1969;
The deeds declared null by this judgment are hereby ordered to be cancelled, to the extent that they have been so declared null;
The whole with costs in all courts against respondents Yves Germain, Victor Germain and the Attorney General of the Province of Quebec, and without costs as to respondents Isabelle Dynes Bigaouette, Lucien Dynes, Marcel Cloutier and Juliette Dynes. However, respondent Isabelle Dynes Bigaouette shall not be entitled to the costs of her defence in the Superior Court or of her proceedings in the Court of Appeal, if any.
Appeal allowed, but in part only as to appellant Mariette Denis Cossette.
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Solicitors for the appellants: Flynn, Rivard, Cimon & Associés, Quebec.
Solicitors for the respondents Germain: Lazarovitz, Cannon & Associés, Quebec.
Solicitors for the respondent the Attorney General of the Province of Quebec: Dorion, Jolin & Associés, Quebec.
[^1] Judgment summarized.
[^2] English translation by the Louisiana State Law Institute, 1965.
[^3] Article 1311 C.N. corresponds to our art. 1008 C.C.