Supreme Court of Canada
Dubuc v. Kidston, (1889) 16 SCR 357
Date: 1889-03-18
CHARLES ALEXANDRE DUBUC (PLAINTIFF)
Appellant;
And
JOHN PEARSON KIDSTON et. al., (DEFENDANTS)
Respondents.
1888: Oct 19; 1889: Mar 18
PRESENT.—Sir W. J. Ritchie C.J and Strong Fournier Taschereau and Gwynne JJ.
ON APPEAL .FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Hypothecary action—Judgment in—Art. 2075 G.C.—Service of judgment— Art. 476 C.C.P. and Cons. Stats. L.C. ch. 49 sec. 15 Waiver.
By a judgment en déclaration d'hypothèque certain property in the possession and ownership of respondents was declared hypothecated in favor of the appellant in the sum of $5,200 and interest and. costs; they were condemned to surrender the same in order that it might be judicially sold to satisfy the judgment, unless they preferred to pay to appellant the amount of the judgment. By the judgment it was also decreed that the option should be made within forty days of the service to be made upon them of the .judgment, and in default of their so doing within the said delay that the respondents be condemned to pay to the appellant the amount of the judgment.
This judgment, (the respondents residing in Scotland and having no domicile in Canada) was served at the prothonotary's office and on the respondents' attorneys. After the delay of forty days, no choice or option having been made, the appellant caused a writ of fi. fa. de terris to issue against the respondents for the full amount of the judgment. The sheriff first seized the property hypothecated, sold it and handed over the proceeds to a prior mortgagee. Another writ of ñ. fa. de terris was then issued and other realty belonging to the respondents was seized. To this second seizure the respondents filed an opposition a fin d'annuler, claiming that the judgment had not been served on them and that they were not personally liable for the debt due to appellant.
Held,—1st. Reversing the judgment of the court below, that it is not necessary to serve a judgment en déclaration d'hypothèque on a defendant who is absent from the Province and has no domicile. Art. 476 C.C.P. and Cons. Stats. L.C. ch. 49 sec. 15.
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2nd. That the respondents, by not opposing the first seizure of their property, had waived any irregularity (if any) as to the service of the judgment.
3rd. That in an action en déclaration d'hypothégue the defendant, may in default of his surrendering the property within the period fixed by the court, he personally condemned to pay the full amount of the plaintiff's claim. Art. 2075 C.C.
APPEAL from a judgment of the Court of Queen's Bench, for Lower Canada (Appeal Side) confirming the judgment of the Superior Court maintaining an opposition à fin d'annuler fyled by the respondents to a writ of pluries fieri facias issued at the instance of the appellant.
The material facts of the case are as follows: —
By a judgment of the Superior Court, Quebec, reversed by the Court of Queen's Bench, but confirmed by the Supreme Court, Kidston et al., present respondents, were at the instance of Dubuc, present appellant 'condemned to surrender certain immovables, unless they close to pay Dubuc $5,250. They were also ordered to declare their choice or option to sum render or to pay, within forty days of the service of the said judgment and in default of their so doing within the said delay the court adjudged and condemned them to pay Dubuc the said sum of $5,250, interest and costs.
The judgments of the Superior and Supreme Courts having been served on Kidston et al., at the prothonotary's office, on the 23rd December, 1884, and on their attorneys on the 27th of the same month, and no choice or option having been made by them as ordered, Dubuc caused a writ of execution to issue against the Kidstons for the full amount of his judgment. The sheriff seized certain immovables mentioned in the judgment and sold them for $2,270.00. This amount was immediately claimed by an opposition for payment from Kidston et al., as representing
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two creditors anterior to Dubuc whose mortgages they alleged they had paid. Dubuc then issued another writ and seized a number of other immovables belonging to the Kidstons in order to be paid his judgment.
To this second execution the Kidstons fyled an opposition à fin d'annuler, praying that the seizure be declared null and the judgment fully satisfied.
The grounds of their opposition were:—
1. That they never had a domicile in the Province of Quebec and that the judgments in question had not been served upon them.
2. That they had paid the costs on the first action.
3. That Dubuc had caused the immovables mentioned in the judgment to be seized, and that they did not oppose their sale.
4. That they had paid two mortgages anterior to that of Dubuc, to wit: the mortgages of O'Sullivan and Hall, amounting to $5000,00.
5. That by these payments they had been substituted to O'Sullivan and Hall and had the right to be paid in their stead before Dubuc upon the price of sale.
6. That Dubuc had instituted against them another action for $3200 for deteriorations caused since the bringing of the first suit to the immovables mortgaged in his favor.
Dubuc met this opposition by a special denial and by a plea of exception, in which he says:
1. That before suing the Kidstons, he had sued his personal debtor, Connolly, who was condemned, not withstanding' a plea of payment, and that this final judgment was res judicata.
2. That although this judgment had been produced in the present case, the Kidstons met his action with the same plea of payment which was rejected for the second time.
3. That the judgment in this cause had been served
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upon them and their agents and attorneys; that they had received notice of the service, and were made aware of that fact before the seizure of the first immovables.
4. That they had refused to make the choice or option as ordered by the court, and that they had thereby become his personal debtors.
5. That before and after the seizure the Kidstons had offered him $4,500 in settlement of his judgment and that they became purchasers themselves, adjudi cataires, of the immovables sold, for $2,270.
6. That they had claimed by opposition, as having paid it to Hall and O'Sullivan, the whole produce of the sale in preference to him.
7. That the suit for deteriorations on these immovables, could not prevent Dubuc from executing his judgment, it being only an additional remedy.
And after alleging some other facts not material to the issue in the case, he concluded by praying the court to declare that the terms of the judgments are absolute, that they impose upon the Kidstons the obligation to pay him the full amount of the condemnation in default by them of making the option required, and he prayed the dismissal of their opposition.
Blanchet Q. C. for appellant.
8. The judgments have been served according to law Arts. 223, 570, 605, 852, 906 C.C.P.
Art.·84 C. C. P., applies to two cases (1) when a party has no domicile in Lower Canada, (2) or has left it since the beginning of the suit.
In this case the bailiff swears that he has made all the necessary searches and enquiries to find the Kidstons, and that he could not find them, as he was credibly informed that they then had not and never had any domicile either in the dirtrict or in
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the Province of Quebec This is sufficient. See Doutre Code de Procedure (). See also Bioche Dic. de Procedure ().
But even if there is any irregularity, respondents have waived their right to urge it against appellant, by becoming purchasers of the property sold under the first writ of execution. Dalloz Repertoire, ().
2. Are the Kidstons bound to satisfy the condemnation, having failed to declare their option to surrender or pay, and having remained in possession?
The judgment of the Supreme Court is in conformity with the following articles of our Civil Code, Arts. 2061, 2075, 2079, 2089. See also Guyot, Repertoire (); Bourjon droit Commun (); Teulet Codes annotés, Code Napo léon (); Société de Construction v. Bourassa ().
Irvine Q.C. for respondents.
Neither the judgment of the Superior Court of the 8th July, 1882, nor the judgment of the Supreme Court of Canada, of the 23rd June, 1884, was ever legally served upon the respondents. Art. 84, C.C.P.
By law and by the terms of such judgment the only personal condemnation against the respondents was in costs, which it is admitted they have paid. Arts. 2168, 2169, C.N. and commentators thereon. Belanger v. Durocher () :
It is established that the judgments in question have been fully satisfied.
By law and by the terms of such judgments, even had the same been duly served the appellant's recourse was limited to the judicial sale of the property declared to be hypothecated in his favor, against a
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curator, in the event of a surrender, and against the respondents in the event of no surrender.
Appellant has admitted that the judgments are discharged, and is now exercising1 recourse by a special suit in damages against the respondents, inconsistent with their being in force either in whole or in part
The judgment of the court was delivered by TASCHEREAU, J:—
"We are of opinion to allow this appeal.
On the first ground of the opposition, based on the irregularity of the service of this judgment, it is sufficient to say that under ch. 49, C. S. L. C., sec. 15, reproduced in Art 476, C. C. Proc, it is not necessary to serve the judgment en déclaration d'hypothèque on a defendant who is absent from the Province, or who has no domicile therein The opposition alleges that " The opposants and defendants have not now and never had their domicile in the Province of Quebec, and neither the judgment of the Superior Court of Lower Canada nor the judgment of the Supreme Court of Canada, both hereinbefore set forth, has ever been lawfully signified to or served upon them."
The judgment appealed from adopts this contention as a ground to annul this seizure. I assume that, as the above statute and article of the code were not mentioned by either of the parties at the argument before us, and are no where noticed in the factums, they were not brought to the attention of the courts below; otherwise, I take it for granted this considérant of the judgment would have been left out.
On the ground of waiver also, this irregularity, if any exists, cannot now be invoked against this second seizure. Having allowed the seizures and sale on a first fi fa., the opposants are too late now to urge as a ground of nullity of a second seizure, an irregularity
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which, if existing, would have made the judgment non-exécutoire altogether, till duly served. By allowing the first execution they have admitted that the judgment was exécutoire. They have renounced all right to any service at all of the judgment. Now that the mortgaged property has been seized and sold on them, how can they ask that the judgment ordering them to surrender it or pay should now be served on them? The service was a condition precedent to the first execution. How can it now after the execution, the said execution having been acquiesced in, be con tended that the want of service causes the nullity of a second execution?
By the second ground of their opposition the opposants virtually attack the judgment rendered against them. This judgment condemned them in the usual form, in default of surrender of the property mortgaged or of payment of the mortgage, to pay to the plaintiff the amount of his demand. Now they have neither paid, nor surrendered the property, and yet they contend that the plaintiff cannot execute his judgment against them, because he has already caused the mort gaged property to be seized and sold, and if his claim was not paid out of that sale that does not concern them as they allege, the plaintiff having no further recourse against them.
This contention is untenable, The judgment itself disposes of it, and the judgment as it stands the plain tiff has a right to execute. In law, the opposants could not have demurred to the personal condemnation, in default of payment or option to surrender, asked for by the plaintiff in the conclusion of his declaration.
Articles 2 75 is clear the defendant is condemned “in default of surrendering, to pay to the plaintiff the full amount of his claim."
Such is not the law in France; under the Napo-
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leon. Code there is there no article corresponding too our Art. 2075, and “si l'acquereur ne paie ni ne délaisse, les créanciers n'ont pas droit de poursuivre leur paie ment contre lui, mais seulement de l'exproprier de l'immeuble." Delvincourt (), Duranton (); Tarrible, cité par Troplong () : Merlin, Repertoire () :
Under the old law in France, also, I am not pre pared to say that, according to the true principles in the matter there could be a personal condemnation against the Tiers détenteur
"Car"(says Loyseau) ()" peut-on condamner à payer celui qui n'a rien, promis, qui n'a point contracté, et qui n'est pas obligé ni héritier de l'obligé." Vide Barguet, dés droits de justice ().
However, it is unnecessary here to investigate this question. It is clears from Pigeau, () Guyot, () and others, that the opinion had for a long time prevailed amongst many that the defendant who did not surrender the property mortgaged might be personally condemned to pay, and following the universal juris prudence and practice in the Province of Quebec, where this view had been adopted the codifiers em bodied it in Art. 2075 on which they remark in their report:
The object of the hypothecary action being to have the immovable surreudered and sold, the defendant may make such surrender either before judgment or within the delay prescribed by the judgment, and in default of such surrender the holder is personally bound to the payment of the debt. This personal responsibility may be looked upon as a penalty imposed for contumacy, without however prejudicing in any manner the rights of the prosecuting creditor, who may forthwith seize the hypothecated immovable at the same time as the movables of the debtor and thus obtain satisfaction
The opposants may have strong grounds to urge that this should not be law but on that point their
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adversary has not to join issue with them That such is the law disposes of this contestation.
Then there are good reasons to support the equity of the view adopted by the codifiers The defendant has only to surrender the property to get rid of the personal condemnation. If he does not choose .to do so he cannot complain. He voluntarily and deliberately remains in possession of the property mortgaged, and enjoys rents, profits and revenues thereof, whilst if he had surrendered it the curator for the mortgagees would have been entitled to these profits rents and revenues. Arts. 535, 536, 537, C. C. Proc. He thus benefits by not surrendering and deprives the mortgagees of what otherwise would have gone to satisfy their claims. To prevent this as much as possible the code enacts that if the defendant does not surrender, if he prefers to retain the possession of the property and to collect and take the benefit of the revenues thereof, he shall then be personally condemned to satisfy the plaintiff's claim.
We are of opinion that the plaintiff's judgment is now executory against all the properties of the opposants, and that the opposition must fail.
The appeal will therefore be allowed with costs in all the courts, distraits to attorneys of record.
Appeal allowed with costs.
Solicitors for appellant: Blanchet, Amyot & Pelletier.
Solicitors for respondents: W. & A. H. Cook.
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