Denis-Cossette v. Germain

Denis-Cossette v. Germain
Collection
Supreme Court Judgments
Date
1982-05-31
Report
[1982] 1 SCR 751
Case number
15494
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien
On appeal from
Quebec
Subjects
Civil law
Civil procedure
Decision Content
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. 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, 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. 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), 17 S.C.R. 235, considered; Meloche v. Simpson (1899), 29 S.C.R. 375; Groulx v. Bricault (1921), 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 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. 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. 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. 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.
290. …
[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.
1484. 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; 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 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; 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. 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: 283. 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.
… 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. 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.
1. 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 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.
1355. 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: 269. 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. 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.
2. 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 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 f