Meloche v. Simpson et al., (1899) 29 SCR 375

Supreme Court of Canada

Meloche v. Simpson, (1899) 29 SCR 375

Date: 1899-02-22

JEAN BAPTISTE MELOCHE et al. (PLAINTIFFS)

Appellants;

And

JOHN HENRY PELLY SIMPSON et al. (DEFENDANTS)

Respondents.

1898: Oct 13; 1899: Feb 22

PRESENT: — Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick and King JJ.

ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA, APPEAL SIDE.

Title to land—Substitution—Acceptance by institute—Parent and child— Rights of children not yet born Revocation of deed—Prescription—Bona fides Recital in deed—Presumption against purchaser—Arts. 930, 2191, 2193, 2202, 2207, 2251, 2253 C. C.

A substitution created by a donation inter vivos in favour of the children of the institute, even before they are born, is irrevocable after acceptance by their parent; and the law of the Province of Quebec on the subject, as declared by the Civil Code, is the same as the old law of that province in existence before the promulgation of the Civil Code of Lower Canada.

Where an institute has accepted a donation creating a substitution in favour of his children, his acceptance as institute constitutes valid acceptance of the substitution on behalf of his children thereafter born to him during marriage.

Where the title deed of a purchaser of lands bears upon its face recitals which would have led upon inquiry to evidence of the defeasibility of his vendor's title, he must be presumed to have been aware of the precarious nature of the title he was purchasing and prescriptive title cannot afterwards be invoked either by him or those in possession under him as holders in good faith under transitory title.

As good faith is required for the ten years prescription under the Civil Code, that prescription cannot be invoked against a substitution which has been duly registered, such registration being sufficient to constitute any third party, who might subsequently Purchase from the institute a holder in bad faith.

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Appeal from the judgment of the Court of Queen's Bench for Lower Canada, (appeal side) ([1]), affirming the judgment of the Superior Court, District of Montreal, which dismissed the plaintiffs action with costs.

A statement of the case appears in the judgment reported.

Beique Q.C. and .J. E Martin for the appellants. The donation had in view the marriage of the donee and the future condition of the wife and children especially the establishment in life of the latter. The donor and donee intended to create what is known as u une institution contractuelle ou (d'hérédite." The deed was published and duly insinuated in 1832 and registered immediately after the institution of lands registration offices in the Montreal District in 1844, and Meloche, junior, accepted the donation to him as institute and entered into possession of the lands immédiate after the execution of the deed of donation He married within six months of the date of the deed of donation and referred to it as his title to the lands in his marriage contract. He continued in possession until 1850, when the first deed was revoked and the new deed executed in favour of himself and his wife. See 1 Bourjon 189. The second deed was registered but never was published or insinuated as required for donations, up to the year 1855. See Macintosh v. Bell ([2]). The deed to Sir George Simpson, in 1854, also registered, refers to the second deed as the vendor's title and the purchaser is charged with both actual and constructive notice of the existence of the undercharged substitution in favour of the appellants, the donor's grand children,

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under the deed of 1832. The defence of prescription must consequently fail as the respondents are affected by notice of the precarious title of the vendor and must be held to be in bad faith when claiming a superior title. Prescription did not run before the death of the institute in 1886 Art 2207 C. C. See Duplessis, œuvres, vol. 1 pp. 490 521-523; Pothier Prescription no. 34; 32 Laurent nn. 406, 410, 414; Le Roux de Bretagne, vol. 2 p. 107, no. 926; S. V. 27, 2, 181; Dalloz, 1888, 1, 130; 2 Troplong 921; 21 Duranton, 386; v. Brown ([3]); Baudry-Lacantinerie, Prescription n. 61; 2Aubry & Rau, nn. 213-218. Prescription does not run against a claim dependent upon a condition before the happening of that condition, Arts. 2236, 2237, C. C.; Gilbert sur Sirey Art. 2257 nos. 1 and 2; 21 Duranton, 279. We also refer to Aubry & Rau, Vol. 2, p, 327, note 1 p. 367 sec. 215 his and p. 385, note 30; Page v. McLennan ([4]) Dorion v. Dorion ([5]); Symes v. Cuvillier ([6]), and authorities cited at page 389 of Beauchamp's Jurisprudence of the Privy Council.

As to the revocation of the substitution it must be borne in mind that the present substitution was created by an ascendant with a view to marriage in favour of the institute and his children to be born the acceptance being made by the institute as well for himself as for his said children. Arts. 772, 788, 790 and 930 C. C. declare such an acceptation for children to be born to be perfect, and the substitution irrevocable, and merely consecrate the previous existing law. Herse v. Defaux ([7]); Stewart v. Molson's Bank ([8]); Smith

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v. Davis ([9]); Beautieu v. Hayward ([10]); Joubert v. Walsh ([11])

Geoffrion Q. C, and Fleet for the respondents. The respondents are holders under translator title in good faith and had acquired the prescription of ten years prior to the action and subsequent to the attainment of the age of majority by all the substitutes. The onus of proving bad faith is upon plaintiffs; art. 202 C. C. and such bad faith must have existed at the date of the purchase; art. 2253 C. C. The appellants must show that Sir George Simpson at the time of the acquisition by him of the property was aware not only of the precise terms and legal effect of the deed of donation of the 11th January, 1850, but of the precise terms and legal effect of the deed of the 15th August 1832. There is no proof that Sir George Simpson had knowledge of the existence of this deed at the time of his acquisition of the property on the 2nd September, 1854. Even supposing he had knowledge of such deed when he purchased the islands, there is nothing in the terms of the deed to show what the terms of the substitution referred to were, in whose favour it was created or whether there was at the time an existing substitution or not. Knowledge of the terms of the substitution acquired during the occupation of Sir George Simpson, even if proved, would not have availed appellants, for, by arts. 2251 and 2253 C. C. it is not ten years possession in good faith that is required but acquisition in good faith followed by ten years possession, and this is so, whether the law applicable to the present case is to be governed by the code or by the law anterior thereto, for art. 2253 C. C. is old law in force before the Code. The defendants as universal legatees

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of their father under the same title continued his pos-session and good faith. Art. 2200 C. C.; 32 Laurent 361.

The youngest appellant became of age in 1874; the action was instituted in 1893 and the respondents and their father had been in possession under translator title in good faith, since the 2nd September, 1854. This possession is effective and avails as investing them with a prescriptive title in virtue of arts. 2206 and 2251 C. C. True, the substitution only opened in 1886, but the ten years' prescription runs against substitutes before the opening of the substitution.—Arts. 2207, 2270, C. C. This was also the law before the code : Ricard, Substitutions, 3 0. 13 pt. 2, nos. 92 and 93, referred to in Thevenot d'Essaule, (éd. Mathieu) no. 886; Domat, Lois Civiles, Liv. 5, tit. 4 S. 3, nos. 13 and 14,p 526 But as it does not appear that prescription commenced under the old law, the prescription of ten years as regulated by the Code must apply.

The law determining whether the revocation is valid, is without doubt that existing in the years 1832 and 1850 and art 930 C. C, in so far at least as respects the revocability of substitutions, is a departure from the principles as laid down under the old law. The codifiers intended to introduce such new law and the article, in its present form, embodies the amendments proposed by the codifiers, and is the second draft prepared by them. In the first report (p. 280) they state that the suggested amendments are made with the view of introducing uniformity with reference to the rules relating to the acceptability and irrevocability of substitutions. See Beaulieu v. Hayward ([12]); Wood v. Blondin ([13]); Hutchinson v. Gillespie ([14]); Les Sœurs Hospitalières de St. Joseph v. ([15]); and Symes

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v. Cuvillier ([16]); and it was held, in Symss v. Cuvillier (1) that the Ordonnance des Donations of 1731 Was never in force in Lower Canada, never having been registered. It was so decided in Joubert v. Walsh ([17]); Jones v. Cuthbert ([18]); and Caty v. Perrault ([19]). We also refer generally to Pothier (ed. Bugnet) vol. 8, p. 514, no. 174; Thouin v. Leblanc ([20]), at page 372 n. and the cases there cited also to S. V.1845, 1241 as to the question of good faith.

The rights of the parties in the present case are governed by the law in force in this province in the years 1832 and 1850, the years respectively in which the deed of donation invoked by appellants was executed and was revoked, being the law of France prior to the ordonnance of 1747 and under that law the donation of 1832 was validly revoked by the donation of 1850.

The judgement of the court was delivered by :

Taschereau J—The revocation forty-nine years ago of a fiduciary substitution created sixty-seven years ago by a deed of donation gave rise to the present litigation.

The principal point of law in controversy upon this appeal has been definitely settled for more than thirty years by the Civil Code of the province. It is therefore probably the last time that it will ever be brought up before a court of justice. Then the property in dispute, according to what the tenant in possession said of it at the trial, does not appear to be of very considerable value. I have nevertheless given to the case a great deal of consideration. It is a very interesting one indeed, and I have spent many pleasant hours over it.

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The facts are simple. On the 15th of August, 1832, one J. B. Meloche (et uxor) conveyed by deed of donation a certain property to his son. J.B. Meloche, junior, then unmarried, a party to the said deed and accepting said donation for himself, his heirs and assigns, with express stipulation that the said donee was to have but a life estate in the property, and with charge of fiduciary substitution in favour of his male children or any one of them at his election " the donors divesting^, themselves of their right of ownership in favour of their said grandchildren."

A few months later the said Meloche junior married. Eighteen years later, on the 11th of January, 1850, he and his father agreed to revoke the substitution created by the said donation of 1832, thereby giving him the full ownership of the property, of which he was since then in possession instead of a mere life estate that he previously had. for that purpose they went through the form of revoking the deed of 1832, and of executing a new deed of donation without the substitution proviso; but, immaterial though it be, in my opinion this was nothing but a simulation and a subterfuge. It was merely the substitution that was revoked, and that was intended to be revoked.

Subsequently, in 1854, the donee, Meloche, junior, sold this property to the late Sir George Simpson.

The appellants, the donee's children, alleging their father's death in 1886 their renunciation to his succession and the due publication and registration of the deed of 1832, now claim the property from the representatives of Sir George Simpson.

The only question upon this appeal, besides a plea of prescription which I will consider later on, is whether the aforesaid revocation of that substitution in 1850 was lawful or not. If not, the sale by Meloche to Sir George Simpson stands dissolved in law by

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Meloche's death, and the appellants are entitled to the property. Huc Code Civil, vol, 6, nos. 416, 418. In another form the question is, whether the law on this point before the Code was the same as it is now under Art. 930 thereof. For it is conceded that if the case were governed by the Code, the appellants would be entitled to the property.

Counsel on both sides have diligently elaborated the question and have given us invaluable assistance in the researches they have made. I have delved with them into the ancient law. I have examined every one of their quotations Charondas, Auzanet, Lebrun, 1icard, Furgole, D'Aguesseau, Ferrière, Theve-not, Pothier, and others. I find that in not many of them is the precise point in controversy here considered; that is, whether in a deed of this nature, the acceptance by a father for himself constitutes an acceptance by the substitutes. The distinction between the case where the substitutes are the children of the institute as the appellants are here, and the case where the substitutes are not his children appears to have often been lost sight of by the commentators. Yet, it is a very important one. The code impliedly recognises it by restricting the irrevocability to the substitutions that are created in favour of the children of the institute. Thevenot for instance pages 57, 385, 448, invoked by the respondents, does not notice this distinction. The controversy had no actuality when he wrote, as it had then definitively been settled in France by the Ordonnance of 1747. He simply states what the law was previously according to Ricard, without reasoning the question. But Ricard has given two diametrically opposed opinions on the subject. Vol. 1 pp. 193-4; vol. 2 pp. 278-9. He is said by Thevenot himself in his preface, to be a writer "who has often wandered away from the

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true principles." He certainly must have wandered away once upon this question. Merlin, Rep. v. revoc. de substit., cites in support of the proposition that the ordonnance had introduced a change in the law in this respect, the works of Charondas, vol. 2, page 523, réponse XCII. Now the case there quoted does not touch the point at all. It appears to have been determined on the ground either that there was no substitution in the deed there under consideration or that the substitution, if any, had lapsed by the death of the donee before the donor. And in his commentary on the Coutume de Paris, page 195, this same Charondas says that, in his opinion, if a done accept a donation for himself with charge to deliver it over on the happening of a certain event to a third person not a party to the deed, the donation to this third party is irrevocable,

et me semble que le donateur et le donataire ne peuvent infirmer telle donation au préjudice de celui qui est dénommé en la condition.

Moreover this opinion in Merlin is especially given as the law applicable to Provence, where the ordonnance had not been registered. Yet Lebret, the president of the parliament of Provence itself its Chief Justice or Lord Chancellor, I might call him, and Decormis, a celebrated member thereof, are both of opinion, in answer to D'Aguesseau's questions, page 42, that such. substitutions were always irrevocable. And Montval lon des Succ. vol. 2, page 105, an eminent commentator upon the laws of this same parliament of Provence, says :

The ordonnance of 1747 is in conformity with our jurisprudence as to the irrevocability of substitutions created by donations inter vivos.

Domat lois civiles tit. X, sec. 1, part VI, has been cited to prove the undeniable proposition that donations are revocable with the donee's consent. Certainly, Meloche senior had the right to revoke the donation

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to his son with, his son's consent. But that is not at all the donation in dispute here. What is controverted, and all that is controverted by the appellants is the donor's right to revoke without their consent not the donation made to their father but the donation made to themselves either with or without their father's consent.

Furgole, Donat. vol. 1, page 93, vol. 2, pages 39 to 48, Substit. page 47 who also would appear to admit the right of revoking such a substitution, though not very clearly, writes under the law of the parliament of Toulouse, a parliament de droit écrit, whilst Bourjon, dr. comm. de Ia France, vol. 2, page 125, par. XXXVI et seq., who supports the doctrine of irrevocability, wrties before the ordonnance, under the Coutume de Paris, the law of the province of Quebec. So does Lebrun des Succ, part 2, page 30, no. 45, who, noticing the distinction 1 have alluded to is of opinion that such a substitution when in favour of the children of the institute is irrevocable.

Terrasson, a celebrated lawyer, in vol. 2 of Claude Henri's works (Nouvelles Observation page 175) puts the question under the Coutume de Paris and answers.

At first sight it would seem that the acceptance by the first donee is not an acceptance "by the substitute; however, in law it is so.

And Rousseau de Lacombe, rec. de jurisp. v. substit page 688, sec. V. no. 5, says;

Fidéicommis par donation entrevifs acceptée par le donataire est irrévocable

and in his commentaires sur les nouvelles ordonnances, p. 57,

donataire chargé de substitution, qui par son acceptation a rendu la donation irrévocable aussi bien en sa faveur qu'à l'égard des substitués

I do not see, however, the usefulness of continuing here the review of the commentators. It would merely

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further prove to no purpose whatever, that, as stated by D'Agusseau, Ferrière, Pothier and others, for a long time in France before the Or'donnance of 1747, there had existed a great diversity of opinions on the subject. And to count them would not do. Ponde-rantur, non numerantur. That is, no doubt, what was done by the eminent lawyers who were entrusted with the task of codifying the laws of the Province of Quebec, when they adopted in art. 930 of the Code, as pre-existing law, the doctrine of the irrevocability of such substitutions. And behind their determination of the question, principally based, it may well be assumed, on the opinion of the majority of the members of the parliament of Paris, then the highest Court of Justice in France, given in answer to the questions put by D'Aguesseau, we should not under the circum-stances go.

It has been questioned if the codifiers really intended to draft this part of art. 930 as pre-existing law. But I do not see that there can be the least room for doubt about it. They were specially required by 29 Vict. ch. 41, to carefully distinguish in the Code, as it was to be printed for promulgation, the new law from the old law. In conformity with that enactment they reported that m the edition so officially printed they had inserted the new law between brackets. And the irrevocability of substitutions in favour of the children of the institute is not between brackets. It is designedly left out of the brackets immediately preceding it though it had been unnoticed in the article first drafted as pre-existing law. Then, in their report they state unequivocally that it is only as regards the acceptance of such substitutions inter vivos subsequent to the deed (by persons able to accept of course, and when they are not the children of the institute), that they suggest an amendment. Some writers contended

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that, as it was then for donations, it was likewise only in express terms and in the deed itself or in a subsequent deed to which the donor was a party, (art. 181 of the codifiers report), that the acceptance of any substitution created thereby when required could be awfully agreed to. But the codifies, having by art. 788 introduced a change in the law concerning donations as to this, suggested that the same rule should thereafter apply to the substitutions that have to be accepted by the substitutes, meaning clearly the substitutions where the substitutes are not the children of the institute. The legislature adopted their suggestion, and that is the only change that the article contains and purports to contain. The rest of it (not between brackets) is to be taken as declaratory law, as was done for other articles of the same Code in the two cases in the Privy Council of Wardle v. Bethune ([21]), and Herse v. Dufaux ([22]). Upon that ground alone, I would be opinion that this appeal should be allowed. For were I at liberty to do so, I would hesitate before holding that the codifies have fallen into error upon a point that the learned D'Aguesseau, after the most elaborate consideration ever bestowed upon it, could not but report as doubtful. Pothier. . Oblig. No. 73. Pothier, Substit. sec. 1, arts. 1 and 2; D'Aguesseau, Questions p. 531. To use the words of Mr. Justice Hall, in Stewart v. Molsons Bank ([23]).

Any attempt to go back of the promulgation of the Code and to establish an error or misconception, or even an omission, on the part of the codifies as the basis of a judgment at variance with the accepted text of the Code, I consider unwarranted, unnecessary and dangerous in the extreme.

Or as Mr. Justice Blanchet said in the same case :

The learned "judges who framed the Code having reported it to have-been previously the law (by simply not inserting the article between

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brackets) that movables could be substituted, and. the legislature having adopted their report, all doubts that existed upon the question should be considered as forever removed.

These observations upon Art. 981 concurred in unanimously by the Court of Appeal in that case, have their full application upon art. 930 in this case. It might be argued that, by enacting the irrevocability of such substitutions, the ordonnance of 1747 implied that they were previously revocable. But that argument cannot apply to these ordonnances of 1731 and 1747. It is conceded in all the books that they were, with not many exceptions, nothing but a consolidation of the previous law on donations and substitutions. Art. xi for instance of 1731 and art. xii of 1747, cannot be, and are nowhere regarded as, changes in the law. The same may be said, to cite a few more instances of arts, xxvii xxviii, xxix, xxxi to xxxv of 1747 and likewise, according to the Parliament of Paris, and of the majority of commentators, of art. xi of 1747 by which the doctrine of the irrevocability of substitutions stipulated in deeds inter vivos is authoritatively affirmed.

Then upon principle, assuming the question to be res integra I would hold such substitutions to be irrevocable. As a general rule, no doubt, a stipulation in an ordinary contract for the benefit of a third person may be revoked so long as it has not been accepted. But that can have a reasonable application only where there exists as a matter of fact such a person. Art. 1029 C. C And the substitution in this donation inter vivos is not a mere stipulation of that kind; it is a. direct donation to the substitutes the donor or grantor, to use the very terms of this deed itself, divesting himself of his ownership in favour of the substitutes, whose acceptance was out of the question since they were then unborn. Their father was to have it first

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as long as he lived, but, subject to that reservation, the donation to them is as full and ample as it could be. De Laurière des instit. et substit. vol. 2, pp. 128, 134,136, et seq. And what shows that this is not an ' ordinary contract, nor one to which all the rules applying to ordinary contracts can be extended, is that this donation in the form of a substitution was lawfully made, it is conceded, to persons not yet born. Art. 929 C. C. Such a substitution exists as a factitious being as soon as the deed is executed, though there is yet not a single substitutes in existence. Then, art 303 authorises the father to accept a donation for his minor child and that donation is irrevocable even with the father's consent. Compare arts. 772, 778, 789, 818, 823 C. C. And under art. 790 C. C., if one of the appellants had beer born when the donation of 1832 was made, the acceptance for him, if a minor, by his father the institute would have constituted an acceptance for all the others not yet born. All of these special privileges and safeguards that attach to them are characteristic features of donations in favour of children or grandchildren that distinguish them from ordinary contracts. And the law recognises that substitutes, or the legal entity called the substitution, when the substitutes are not yet born, under a donation inter vivos have some rights even before the opening. It cannot be denied that they or the substitution for them before they are born, have an interest in the property. Art. 945 C. C. for instance (as at first in the code) provided for a curator to protect their interests. Art. 956 C. C. empowers the curator to perform all acts of a conservatory nature whether against the institute or against third persons. Art. 2207 C. C. gives an action to interrupt any prescription that may run against them. These provisions clearly imply that they have an interest in the property, though that

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interest be conditional and in suspense. And that being so the law would be irrational if it allowed to the donor the right to deprive them of that interest at his mere will and caprice, when they are themselves unable to act.

The respondents' case, it seems to me, rests on a fallacy. They argue that this substitution of 1832 and the donation to the appellants it imports could be revoked so long as it had not been accepted, and it had not been accepted, they say, when it was revoked. Now that is not so. It was, in law, accepted by the deed of 1832, in peroonê donatarrii their father s acceptance for himself constituted in law an acceptance of the donation to themselves. That is what art. 930 impliedly says, and declares to have always been the law of the province. Bourjon, dr. comm. de la France,. vol. 2, page 125, par. xxxvi. Guyot, v. Donation, 4me. partie, page 172. And that law is consistent wih the fundamental principles of donations inter vivos, which under pain of nullity, cannot be revocable at the donor's will. Art. 783. Then would the law be reasonable if on the one hand it allowed, as it unmistakably does, donations by way of substitution to children not yet born, yet on the other hand, it left them, as contended for by the respondents, at the mercy of the grantor? It is for the protection of unborn children and of future generations and to protect and allow of the Creation of family estates that such substitutions by deed inter vivos are authorised and favoured by the law; it is for that purpose, and because of their nature, that they must be deemed to be irrevocable by the donor. For I do not see, when the donation to him is not affected, that the donee's consent could be required to rescind the substitution, if it could be rescinded at all. He thereby would, get the property free from the substitution. The last part.

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of art. 930 protects him; the revocation, if lawful, would inure to his benefit. So that the respondents are driven to contend that this donor by himself alone had the right to revoke the substitution as long as he left the donation to his son intact, as he has virtually done. I fail to see upon what principle the consent of his son, the donee could at all make the revocation of the substitution lawful, if it could not be lawfully made by the donor alone.

Another view of the question strikes me, assuming airain that art. xi. of the Ordonnance and this part of art. 930 of the Code may not be considered as enactments of a declaratory character. After hearing the reasons and opinions for and against the doctrine of irrevocability of the most learned men in France of that time, Chancellor d'Aguesseau came to the conclusion that the doctrine of irrevocability was the soundest, the most rational, the most equitable one. And to render it incontrovertible and remove the doubts that had been cast upon it, he drafted art. xi. of the Ordonnance of 1747. The Ordonnance of 1731 had merely declared these substitutions to be lawful as they had always been held to be, without, however, express mention of their irrevocability. Then, the distinguished judges who framed this art. 930 of the Quebec Code have adopted the same view of the question when the substitutes are the children of the institute. Further, at the present day in France, though the Code Napoleon has not reproduced art. xi of the Ordonnance of 1747, it is considered that, upon principle and from their character, such substitutions must be deemed irrevocable by lawyers of such eminence as Favard (Rep. subst., page 321, par. xx); Toullier, vol 3, ed. BeIge, no. 731; Zachariae (vol 3, page 130, par. 696); Demolombe, vol. xxii, 5 Donat., no. 442; Duranton, vol. 9, no. 550;

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Boileux, vol. 4, page 206; Aubry et Rau, vol. 7, par. 696 page 337; Laurent, vol. 14, nos. 581, 583, 585; Coin Delisle, Donats. et Tests., page 534, no. 44; Mar-cadé vol. 4 no. 221; Michaux, Testaments, no. 1504; and the learned, editors of the Pandectes Francaises, rep. v. Donat. et Test., nos. 10668, 10669, 10855. The respondents would ask us to determine here that all of these opinions are erroneous. I will not assume that responsibility.

There is another reason in favour of the doctrine of irrevocability which, though perhaps not conclusive by itself, yet adds force to it here, it seems to me, as applicable to the actual facts of this case. It is undoubted law that a substitution rnade in a contact of marriage is irrevocable. Arts. 772, 930, 1257 C. 0. That is so upon the principle that marriages and procreation should be favoured and encouraged De Laurière des instit. et substit. vol. 2 page 151. Now here the substitution, though not contained in a contract of marriage, was nevertheless evidently stipulated in view of the donee's marriage, which did actually take place within six months thereafter as it is a substitution in favour of his children, and the donation is moreover subject to the express condition that he will not hypothecate the property for the dower of his future wife. That being so, assuming the question to be still a doubtful one as it was before the Code, which is all that the respondents can possibly contend for, is it not reasonable to apply the rule ubi eadem ratio ibi idem jus, and give the benefit of the doubt, if any doubt remained, to a substitution so evidently created in favour of marriage? Arréts de Louet vol. 1, sommaire 51, lett. D., page 564. Is it not in fact as clearly a donation in favour of the donee's marriage as if it had been inserted in the donee's contract of marriage

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itself? And that being so, should we not extend to the children issued of that marriage, the protection that the law aims at for them, though in form the deed might not be the necessary one to generally insure the incontrovertible irrevocability of such a substitution? I must not be understood as saying that a donation such as this one is equivalent to an institution contractuelle by a contract of marriage. All 1 say is that, assuming the question to be a doubtful one, unfettered by authority as we are, the rule of the institution conlractuelle should be applied where the reason for that rule has full application.

A decision in that sense of1596 is noted in Despeisses, vol. 1, page 429, in a case where a donation made four months before the marriage was held to be valid. and irrevocable though at that time such donations were lawful only when made causa dotis et propter nuptias, D'Olive, p. 521, because it had been made in view of the future marriage, quia matrimonies erat causa finalis.

A woman, to suppose a very possible case, is induced to marry such a donee on the faith of the donation to him and of the substitution in favour of their children. If later on her husband, forgetful of his duties, casts her away with the children, she need not fear that her father-in-law either alone or with the connivance of her husband will revoke the substitution and deprive the children of the substituted property. The law protects them by refusing to the donor the right to do so; and he the donor, knew at the time he made it that such a grant to his grandchildren would be irrevocable; the law told him so. But if the respondents' theory were to prevail, the donor would ad nutum have the right to revoke this grant at any time before the donee's death and take away the property from these children. Here again, the reason

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for the doctrine of irrevocability seems to me much stronger than anything that can be said by its adversaries

An isolated case of 1770 (Tattering) quoted in 4 Ancien Denisart, page 388, but of which no authentic report has been referred to at bar is invoked by the respondents in support of their contention. That decision however does not seem to he entitled to much consideration. It is ignored or left unnoticed by every one of the numerous subsequent writers we have been referred to. Dénisart himself cannot have reported it for he had died in 1765 five years before the date given to it. Then it appears to have been a decision upon the appeal of a judgment by default given by the Garonne Court under the Coutume de Peronne probably, Costumier Générall vol. 2, p. 593, but which court gave that judgment in appeal, I have not been able to find out. It is certainly not the Parliament of Paris then the highest Court of Appeal in France. Such a case carries no weight and cannot preponderate against the reasoning and authorities that support the doctrine of irrevocability.

I would be of opinion that the appellants are entitled to judgment on that point.

This does not dispose of the whole case however. Have not the appellants lost their rights by the ten years prescription which has been pleaded by the respondents s

I am of opinion that here again the appellants' contention should prevail. There is, it seems to me, hardly anything to be added on this point to what was said in the Court of Appeal, which was against the respondents on this plea The new enactment in art 2207 did it apply, that prescription runs before the opening, cannot be extended to the ten years' prescription. One of the essential elements of that prescription is good faith.

[Page 394]

And the knowledge of another one's right is in law bad faith. Troplong, Prescr. nos. 915, 926. Now the insinuation and publication of this substitution was notice of it to the world. The purchaser of such a property from the institute is in law presumed to have been personally aware at the time of the purchase and ever since that his vendor had none but a defeasible title. Ignorantia juris non excusat. 2. Troplong, no. 926; 7 Boileux, page 843. The case presents itself precisely as if it had been in the deed of sale to Sir George Simpson that Meloche senior had intervened to revoke the substitution. In his commentary on prescription, Pothier says no 1411

Les droits de substitution ne sont pas sujets a cette prescription lorsque la substitution a été duement publiée et iusinuée.

And in Oeuvres de Cochin vol. 6 pages 13 and 14 in the same sense, it is said by that great lawyer :

Les tiers acquéreuss ne peuvent prescrire par dix ans entre présens et vingt ans entre absens Ia substitution étant connue par la publication qui en a été faite, les acquéreuss et détenteurs sont nécessairement en mauvaise foi.

Bretonnier (sur Henrys) vol. 2, page 245, also says :

Pour ce qui est de la prescription de dix et vingt ans, ii est certain que les acquéreuss de biens substitués ne peuvent pas l'opposer au fidéicommissaire

And Rousseau de Lacombe, page 511 :

Quant aux immeubles l'acquereur ne peut opposer la prescription de 10 et 20 ans au fidéicommissaire

It is upon that principle that the sheriff's sale does not discharge the substitution, art. 710 C. C. P , if it had been duly insinuated and published (now registered since 1855,18 Vict. ch. 101), because the purchaser is presumed to have known of the substitution. Theve^-not page 282, nos. 870 871; Pothier, substit, sec. 5, art. 3; de Héricourt vente des immeubles 48 Pothier proc. civ. 257.

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Les lois ont voulu que ceux qui acquierraient ce bien (un bien sub stitué) ne puissent en prescrire ni en purger la propriété contre les appeles.

1er. pigeau, 720.

The effect of such publication (said C. J. Sir A. A. Dorion, for the ' court in Blumer v. Dufresne ([24]), is a notice to all the world of the limited right of the institute in the property of which he has only a life interest, and of the reversionary interest of the substitutes. And all parties are by law deemed to have acquired a knowledge of a duly published substitution, and this forms a presumption juris et de jure which cannot be controverted by any evidence to the contrary In the present case. Dufresne the institute) had no right to sell the property itself, and the appellants are by law presumed to have known it.

And in the formal judgment of the Court of Appeal in that case it is held that :

Vu la publication et enregistrement du dit testament les appelants, lorsqu'ils ont acheté le sable en question étaient censés connaître la substitution v contenue et savoir que le dit Jean Baptiste Dufresne n'avait aucun droit de vendre ce sable.

That case came to this court but is not to be found in our reports. A note of it in Cassels's Digest, ([25]), is to ¡me unintelligible. There was no plea of prescription in the case (necessary for the prescription mentioned) and not a word of it in the judgments either of the Superior Court ([26]), or of the Court of Appeal (1) nor, as I have ascertained, in the record sent up to this court. However, the holding given in Cassels that publication of the substitution in that case was not sufficient notice to put third parties on their guard must be assumed to have been based on the same reasons as those that were given by the judges whose opinions are reported (loc. cit.) and that was simply because publication, though notice of the substitutes' title to the realty is not a notice that affects personality, or, as it was in that case, the purchase of sand removed from the land Here it

[Page 396]

is the title to the property that is in dispute, and Sir George Simpson must be presumed to have known that it was a substituted property that he bought from the institute.

It is for the very purpose of making it known to every one dealing with the institute that he has but a life estate in the property; Thevenot, pages 233, 243, 504; Demolombe, 5 Donats, no. 555; that these formalities were prescribed.

I would on this ground hold that the respondents' plea of prescription by ten years must be dismissed. But even if the insinuation and publication were not in law notice to Sir George Simpson of the substitution I lo not see how it can be contended that he was personally unaware of it when it is expressly referred to in the deed of 1850 which his vendor represents to him in the deed of sale of 1854 as his own title to the property It is true that it is by that same deed of 1850 that the substitution was revoked but Sir George Simpson must be assumed to have known that such a revocation was unlawful and ineffectual. Troplong, prescr. no. 930. Marcadé, prescr. page 200, par. IV; Leroux de Bretagne, nos. 909, 927; 32 Laurent, 408; Guyot, Prescr. pages 315,342.

The learned Chief Justice of the Court of Queen's Bench was of opinion that this plea of prescription should be dismissed on the ground that the necessary ten years had not accrued under the law anterior to the code that in his opinion governs this case. I cannot make out by the record whether it is on that ground or on the ground of bad faith taken by Mr. Justice Blanchet that the judgment of the court unanimously dismissing the plea is based. However, though unnecessary for me to go further I do not wish to be understood as holding that the ten years had accrued. On the contrary, the reasoning of the Chief Justice seems to me unanswerable.

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I cannot see that a law passed in 1866 could apply to a contract passed in 1832, or in 1854, without being retroactive.

I would allow the appeal with costs and order judgment to be entered for the appellants in conformity with the conclusions of their declaration. That is the unanimous judgment of the court.

Appeal allowed with costs *

Solicitors for the appellants; Foster, Martin & Girouard.

Solicitors for the respondents : Robertson, Fleet & Falconer.

*an application to the Judicial Committee of the Privy Council for leave to appeal from this judgment was refused.