Deschamps v. Bury

Deschamps v. Bury

Article 714 C.C.P. does not permit vacating a sheriff's sale or refunding the purchase price once the sale has been perfected by payment and deed; recovery of price requires actual eviction under actio condictio indebiti (art.1586 C.C.); mere exposure to eviction is insufficient; a sheriff's sale enforcing a prior mortgage discharges an unopened substitution without joining the curator. Therefore the demurrer was allowed and the petition dismissed and appeal dismissed with costs.

Citation
(1898) 29 SCR 274
Parties
Appellant/plaintiff: Alfred Deschamps; Respondent/defendant: George Bury; Mis En Causes: Hon. R. J. Thibadeau et al
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
14 December 1898
Procedural Posture
Appeal (title to Land; Sheriff's Sale) / On Appeal From Court of Queen's Bench for Lower Canada (appeal Side)
Outcome
Appeal dismissed with costs.
Legal Topics
Sheriff's Sale, Vacating Judicial Sale, Actio Condictio Indebiti, Substitution (entail), Eviction, Mortgage Priority
Source Language
English
Property Civil Procedure Contract Sheriff's Sale Vacating Judicial Sale Actio Condictio Indebiti Substitution (entail) Eviction +1 more

Case Brief

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Parties

Alfred Deschamps

Appellant/plaintiff

George Bury

Respondent/defendant

Hon. R. J. Thibadeau et al

Mis En Causes

Procedural Posture

Appeal (title to Land; Sheriff's Sale) / On Appeal From Court of Queen's Bench for Lower Canada (appeal Side)

Legal Issues

  1. 1 Whether article 714 C.C.P. permits vacating a sheriff's sale and refunding the purchase price after the sale has been perfected by payment and deed
  2. 2 Whether the action condictio indebiti to recover purchase price lies absent actual eviction
  3. 3 Whether mere exposure to potential eviction suffices to set aside a paid judicial sale

Ratio Decidendi

Article 714 C.C.P. does not permit vacating a sheriff's sale or refunding the purchase price once the sale has been perfected by payment and deed; recovery of price requires actual eviction under actio condictio indebiti (art.1586 C.C.); mere exposure to eviction is insufficient; a sheriff's sale enforcing a prior mortgage discharges an unopened substitution without joining the curator. Therefore the demurrer was allowed and the petition dismissed and appeal dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • Demurrer allowed and petition dismissed.
  • Appeal dismissed with costs.