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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.''

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 «n<i An.o.ne.te Adelaide,

born on the 22 January 1796. _ , .. . ,;(. -., th» ocih February

Pierre Melchoir de Champlain departed this life on the gjth t»rua^^^

^<*

1805. On the loth March of the «arae year Louise Drouet his wife
caused an inventory to be made of the Community.

It appears by this Inventory that the Furniture, utensils, rearing ap-
parel and other moveables belonging to the Community amounted only

to the sum of ^/.J'/^ . ..xtp avti^w

In the Chapter of •• Money" we find one emphatic word "NE ANT.

Credits belonging to the Community •• sixty Boards." Debts due by the
Community 11 21'. 11. o. . • r j

The Propres of the Husband are said to be consist ot a lot ol ground
of sf^ven acres in front by two leagues in depth. 1 j • f

Those of the widow appear to have been sold by the husband in hif
lifetime for divers sums, amounting in the whole to 1 145'. o.

It appears that a contract of marriage was executed between Mr. De
Champlain and the said Louise Drouet ; which contract the Appellants
have not thought it proper to produce. In October 1805 the widow
made before Badeaux and Confrere Notaries a deciaratic n in addition to
the above inventory stating that there had been omitted a sum ot
343'' 16 due to the Community and another sum of 1026^ 10 due by
the Community.

The accounts of the Community may be thus stated : ^

1-^j

Proceeds of moveables, •

D^bts due by the Community,
('Exclusive ot widows reprises),

Ballance against Community,
To which add Widows reprises^

unproductive. ^Anl it

Thefiropres of the husband were entirely unproductive, -^nl it will
not excite^urprise that a Widow, circumstanced as Madam de Champ-
lain was, wiihout money and owing debts which were large if her means
of paying them are taken into consideration, found it necessary to adopt
the proper measures for the sale of some portion of the piopres of her
hasband then vested by his decease in her children. It is obvious that
without this aid Madame de Champlain would not only have been
unable to rear and educate her children in a manner consistent with the
rank of young ladies, but that she could not even have supplied them with
the ordinary necessaries of life. . n • •

She accordingly on the 24th September 1805, piesenied a Petition to
the Honorable Mr. Foucher, staling her necessitous circumstances and
prayingforpermis^iontosellthefarm in question. 1 his Petition was
supported by the best evidence, the inventory itself. Ameeiiugof rela- ,
tions was called for the purpose of giving their advice.

The persons composing the meeting were Joseph Leon de Charnplain
Uncle and sub-iutof of Louise and Adelaide de Champlain. Gile Pezard
de Champlain. paternal Uncle of the above named Louise and Adelaide.
Jean Bapiiste Dorval, husband of Fran90ise de Chan.plain. Aunt otthe
above named Louise and Adelaide.

Etienne Leblanc, husband of Josephte Richerville, maternal Aunt of the
ahnvp named Louise and Adelaide.

EtiennrRanvoyze, Joseph Comeau and Edward Sills, friends of the
parties These near relations of the Appellants are the persons whom they
hs^vc \n iheir dec[arsinotisiy\td'' either evil dispoied or ignoranL ^

It will be observed too that three of them are relations by the tather s
side and weie therefore interested in keeping this paternal /-r,;/»r(rm the
iamilv Ihey unanimously concurred m giving it as their opinion that
sale of this property should be made. The Judge accordmgly ordered
Sdic 01 ui p p i, ..._ ^a^.^A f^r sale hv niihlic outcrv for three

successive Sundays at the Parish church of Batiscan the adjoining Parish,
which was in t.uih also the Pari>h 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

:»^

cauf<e.

Tr. Art Mln.
chap, XIV. p.
S4, () T.p. 80.

Tr.dtiMln.
p. 141.

Domnt. p,
198. An, IV.
mill p. 'J98,
An. XXVI.

Tr. drs Min.
p. SI, 3^. / 2,
Cod. si Miijor
furliis, /, 3, ^
I.D.de Minor
Pomnl p. 203,
897, 898.

Tr. driMin.
p. 2SH. p. 290.

Tr. d« Win.
Pi 30. Domat,
p. 898.

Dsmnf p,S9S,
Ari,X, p.899,
Aru XXVIII.

Arte de No>
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

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