IMAGE EVALUATION TEST TARGET (MT-3) v.. ^ 1.0 I.I 2.5 M^ 128 I 1^ 1^ III 2.2 Mi ..n IIII2.0 1.8 1.25 III 1.4 {||||<> ^ 6" — ► /a

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CO W en I C/3 W M GS t^ C/l W > ' i )•* > 1^ ^ ^ w 'V ^ ^ 1 - r LHOVINCE OPJ P0WER-( INCE 0P> Couri of Appeals. IN A CAUSE BETWEEN Joseph Remy Vallleres, Esquire, Sieur de St. Real, Sei. gneur of Hertel in part, Advocate in and for the Province of Lower-Canada and Member of the Provincial Parlia. ment of the same Province, residing in the City of Quebec m the said Province, and Dame Louise Pezard de Champlain /^ij zvi/e, and Chkrles Chaussegros.de Lery, Esquire, Lieutenant Colonel in the Militia Forces of the said Province of Lozver- Canada and Deputy Quar^ ter Master General of the said Militia Forces, residing also in the City of Quebec, Tutor duly elected in lazv to Adelaide Pezard de Champlain Minor Daughter of the late Pierre Melchoir Pezard de Champlain an4 Dame Louise Drouetde Richerville /izi wife, (Plain, iijs in the Court below). APPELLANTS. Jean K\v^\Aof the Parish of the Visitation, commonly ^calL ed the Parish of Champlain, Yeman, (Defendant in the 'Court below), RESPONDENT. RESPONDENT'S CASE.'' 3i HE Appeal in this cause is brought from a Judgment rendered ^ti the Court of King's Bench for the District of Three Rivers, dismissInT' the Appellant's action. ° The action in the Court below was for a restitutio in intevrum^ and en petition d'heredite. the declaration states that Louise Pezard de Champlain and Adelaide Pezard de Champlain in the title of \he cause named were heiresses by equal moieties of their late Father Louis Melchoir Pezard de Champlain. • That a certam lot of ground and premises ih-rein described belonged to their said Father at the time of his decease. ^ That by deed of sale passed before Badeaux, and confrere noiaries bearing date the 14th April 1806, Dame Louise Drouet de Richerville xvidow of the said late Louis Melchoir Pezard de Champlain, having n<> knowledge of busines*and relying with the utmost good faith upon the advice of persons either ignorant or evil disposed, sold in her quality of Tutrix of her above named daughter the above mentioned lot of ground ^ and premises to the said Jean Rivard, which sale, (it is alleged) was so made without any lawful audi^ority, and was neither preceded nor ac-. companied by any advertizemcnts. publications or other formalities re- : quired bv the la^, customs and usages of this Province. That the said Respondent bound himself to pay as the price of the a said lot and premises the sum of three thousand, eight hundred livres.*' which sum the Plantlfts havennt rer^iupH nor ^.^..-»t^>-.. C._J .1 u- Ihat by the same deed of Sale the said Widow granted to the Res- pondent, permmion to cut a number of poies upon the land adjoining the said premises in the rear. . 147'?3:2 '■' That mS? \ grant may be declared Thai the said Respondent knewn that the said sale and grant were null, but that he cut large number of poles &c. The Declaration prays : , ^JL 1. That the said deed oi Sale and also the sSW ""o^ThaTthi Respondent be condemned to render and restore lot of Land and premises &c. the appellants indemnifymg him for his im- provemen ^.^ ,^g ^^j^^g^^gj j^ restore the issues and profits &c. 4. That he be condemned to pay the value ot the poles. 5. Costs. 1 J J To this declaration the Respondent pleaded : „,„.,„ j That he was the just and lawful proprietor of the said lot of ground and premises, havrng purchased them from Dame Louise Drouet de Richerville. Widow. &c. and Tutrix &c.by deed of the 14 oi ^P"> 'B06. she the said Widow having been specially authorized to that ettect by the Honorable C. Foucher one of his Majesty's Justices, after an advice of tods and due examination and deliberation and followed by the formalu ties used in this Province for the alienation of the property of M>no[s. That the said sale, authorization and advice of friends were not made, e-anted or given in fraud ot the said Adelaide and Louise de ^han,plain fut were founded upon necessiiy and for the purpose of P^XJ^g ffj'^^^j^^^^^ the Community and to enable their said mother to rear and ^^du^aic them accordiTto their condition in life, for the attamment of which last ob- jVctshrM even sold property belonging exclusively to herself {^ses pro- ^' That the grant of the poles was one which the said Widow had by Law ' '-i^hJRrpondent further pleaded, that the said Joseph Remy Vallieres and the saiS Louise Pezard de Champlain were estopped from bringing any acdon &c, inasmuch as the said Louise Pezard de Champlain rati- fieS the "ale after her majority, in and by a certain -^«i-- ,;;^-^-"^^ rendered by the said Widow to the said Louise Pezard de <-hampIain and by a release and discharge of the Ballance of the said account by the .aid Louise Pezard de Champlain to her said Mother. To this olea the Appellants answered specially : ,. Thlt Ihe Instrument executed by Louise de Champlain was a trans- action and therefore null. , ., . j /•>i. 1 • 2 That no vouchers were delivered to Louise de Champlain. q. That the said Instrument embraced rights with the extent of which Louise de Champlain was unacquainted. 4. That the original deed of sale being null was not susceptible of ^'^f Thlnhe said Jean Rivard was not a party to the said instrument, and'iherefore could not avail himself of it. 6. 1 hat the °ale wa« not made according to the formalities prescribed \' Vhlu^slid Po^we^^^ given, not sold to the said Respondent.. £ That the said authorization was granted without due examination '"fth\7t\7'stirorderfor a sale ought to have been executed by, a judicial sale (Ln/. en Justice) M the usual formalities {afficheset cues) Instrument and for all which they had prayed by their declaration. The facts o^ disclosed in the evidence appear to be as follows— . ._oo p:->— M-loKoir d*" Chamolaiu and Louisc Made Lou,sJ, borne on ,he 26 December .789 «nh Church of Champlain. ^oB.dders ap- neared. It was again offered t. r sale on a fourth Sunday, and the present Respondent becLe the higher bidder ioi the sum ot 3800. aiidu was accordingly adjudged to him, Mgdame Champlain aHerwatds executed a deed of Sale in favor of the Respondent, which is upon the files of this :»^ U cauf loriili Bpod Kep. de Jur. verbo Mioeur in Nelih On ihe 28th July 1815, Madame de Champlain rendered an account in the ordinary form to her dauj^hier Louise de Champlain, who there- *" in look credit for her share of the price oi the lot of ground so sold to the Respondent. In the year 1812 Madame de Champlain departed this life and escaped the mortification of seeing the legality ofher acts as Tutrix questioned by her children. No renunciation to her succe.ssion is produced by the Appellants nor in truth was any made. And the Appellants are by law, as heires.ses of their JMoihcr bound to maintain and defend the Respondent in the possession of that lot of land which as heiresses of their Father they require him to quit and restore them. It will be in the power of the Respondent to shew that all the formali- ties vhich have been usually required have been in this instance observed. The Principles of law applicable to the case appear to be well estab- lished and may be reduced to a tew general propositions. J. Where the real property of a minor is sold in virtue of a Judge's order and the Minor complains that the proper formalities have not been ob.served ; his remedy is by a rescisory action, praying a restitutio in integrum, 2- As on the one hand he is entitled to a restitutio in, mtegrum even wheie all the proper formalities have been observed, if he can shew that he has been damnified by the sale, so on the other hand he is not entitled to this relief, if it appear to the Court exercising a discretion that, altho' the sale may be objectionable in matters of form, yet that in equity and good conscience it ought to be maintained, as exemph gratia where the Minor has derived benefit from the sale« 3. A Ratification or any act equivalent thereto after majority excludes \y the party from the benefit of the restitutio in integrum. 4. A Covenant entered into with a Tutor by his pupil who has arrived at the age of majority, whereby the pupil in consideration of a certain sum releases the Tutor from theobligation of rendermg an account is not binding in law ; but there is no principle of law which prevents these par- ties from entering into a compromise respecting their claims when the account is rendered. 5. The effect of the restitutio in integrum is to put the parties in the same state as if the deed complained of had never been executed, hence where the dted is a sale, the Plaintiff is bound to reimburse the Defendant for his improvements, and also, to repay the purchase money with Inte- lest. 6. After the notifications injoined by the Judge hare been made if no bidders appear, the Tutor may sell by private sale. It will not be necessary to give an abstract of the Reasons of Aopeal as little more is contained m them than a repetition of the declaration and special answer of the Appellants. Ihe answers to the reasons of Appeal are general. tri 1 ! :uted t of this iccount ;i there- *■ '« sold to escaped " stioned nor in dF their session lim to ormali- served, estab- Judge's Dt been itio m 4 even w that ntitled , altho* ity and re the :cludes sf arrived certain lis not se par- len the I in the hence endant 1 Inte- ; if no peal as on and