Brook v. Booker

Brook v. Booker

Because there was no valid seizure under the second writ — the bailiff made no material act of seizure (stood hundreds of feet away), no effective appointment or custody by the guardian, and the hull remained under prior attachment and possession of the vendors — the sale was not "under execution" or "under authority of law" and therefore the purchaser acquired no title; the sale must be set aside.

Citation
(1909) 41 SCR 331
Parties
Appellant (purchaser at Judicial Sale): Arthur H. Brook; Respondents (vendors/marine Underwriters): G. M. Booker and Others
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
12 February 1909
Procedural Posture
Civil Appeal (judicial Sale / Property) / On Appeal From the Court of King's Bench, Province of Quebec to the Supreme Court of Canada
Outcome
Appeal dismissed; judgment of the Court of King's Bench affirmed; sale set aside.
Legal Topics
Conditional Sale, Judicial Seizure, Title to Goods, Rescission of Judicial Sale, Possession Vaut Titre, Main De Justice (seizure)
Source Language
English
Property Civil Procedure Sale of Goods Execution and Seizure Conditional Sale Judicial Seizure Title to Goods Rescission of Judicial Sale +2 more

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Parties

Arthur H. Brook

Appellant (purchaser at Judicial Sale)

G. M. Booker and Others

Respondents (vendors/marine Underwriters)

Procedural Posture

Civil Appeal (judicial Sale / Property) / On Appeal From the Court of King's Bench, Province of Quebec to the Supreme Court of Canada

Legal Issues

  1. 1 Whether a valid judicial seizure was effected under the second writ
  2. 2 Whether a purchaser at a purported judicial sale acquires title where the goods were subject to a prior attachment and not delivered
  3. 3 Whether possession vaut titre applies where purchaser had not taken delivery and price was payable before delivery

Ratio Decidendi

Because there was no valid seizure under the second writ — the bailiff made no material act of seizure (stood hundreds of feet away), no effective appointment or custody by the guardian, and the hull remained under prior attachment and possession of the vendors — the sale was not "under execution" or "under authority of law" and therefore the purchaser acquired no title; the sale must be set aside.

Court Disposition

Appeal dismissed; judgment of the Court of King's Bench affirmed; sale set aside.

Orders

  • Appeal dismissed with costs
  • Judgment of the Court of King's Bench, appeal side, affirmed