REPORTS OF CASES

DECIDED IN THE

COURT OF QUEEN'S BENCH

IN APPEAL,

MONTREAL.

February 21, 1884.

Coram DORION, C.J., MONK, RAMSAY, CROSS, BABY, JJ.

Procedure-Judgment of distribution-Art. 761, C. C. P.

Held, that a party, whose claim against an immoveable seized and sold by the sheriff appears in the Registrar's certificate, but has not been collocated in the report of distribution, and who has failed either to contest the report of distribution or to appeal from the judgment homologating the same, or to present a requête civile or an opposition against such judgment, as required by art. 761 of the Code of C. P., cannot, by direct action, recover the amount of his said claim from the party collocated in such report to his prejudice.

This was an appeal from a judgment of the Superior Court at Montreal (RAINVILLE, J.), on the 16th February, 1883, maintaining the défense en droit filed by respondent VOL. I. Q. B.

1

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to appellants' declaration and action, and dismissing their action with costs. (27 L. C. J. 73.)

The appellants' action was instituted on the 14th February, 1882, against respondent and one Joseph Dier, for the recovery from respondent of a sum of $330, with interest from the 1st November, 1879, alleged to be due to them by him in the proportion of $110 to each.

The declaration alleged that the appellants are the legal owners of a bailleur de fonds claim for $330 and interest as aforesaid, on certain real estate described in the declaration, which had been judicially sold, on the 22nd of December, 1880, by the Sheriff of Montreal, in the cause No. 2589, wherein one Thomas Dickson was plaintiff and said Joseph Dier was defendant.

That on the 7th February, 1881, a report of distribution of the net proceeds of the said sale was made and posted up by the Prothonotary of the said Superior Court; and by the eleventh and last item of said report the balance of the proceeds of said sale, after collocation of certain claimants, creditors and opposants, was awarded to said respondent as follows:-"11. To the opposant, Alexander Buntin, in part payment of his claim amounting to two thousand four hundred dollars, bearing interest at eight per cent., from the 18th November, 1877, founded upon an obligation and mortgage from Joseph Dier, in his favor, executed before Hunter, Notary, on the 18th May, 1869.... $2312.80 Costs of opposition to Messrs. Bethune & Bethune. 18.60

That the said collocation was contested and finally homologated on the 17th day of May, 1881, by judgment of the said Superior Court, and the said sums have been paid to the said respondent.

The declaration then alleged that, according to the Registrar's certificate, filed in the said cause, the appellants ought to have been collocated for said sum of $330 and interest preferentially to said respondent, and by the conclusions of the declaration the appellants prayed that the said respondent should be declared to have received the said sum of $330 and interest through error of law and

fact, and that he should be condemned to pay the same to the appellants.

The respondent filed a défense au fond en droit and a plea to the merits; but as the plea to the merits does not come up on the present appeal, it need not now be referred to.

The demurrer so filed by respondent was as follows:The said defendant, Alexander Buntin, for plea or défense au fond en droit to the declaration and action of the said plaintiffs, saith that the allegations of said declaration are insufficient in law to enable the said plaintiffs to have and maintain the conclusions of their said declaration for the following reasons:

"Because, according to the allegations of said declaration the monies sought to be recovered by this action were awarded and adjudged to be paid to the said Alexander Buntin, under and by virtue of a judgment of this honorable Court duly and solemnly rendered, homologating the report of distribution in said declaration referred to, and the said judgment has never been vacated, revoked, reversed or otherwise annulled or set aside, either wholly or in part, and is still in full force, vigor and effect;

"Because, according to law, said judgment could not be reversed, either wholly or in part, except by judgment of the Court of Queen's Bench, on appeal to that Court, duly instituted;

"Because said judgment could not be otherwise vacated, revoked, annulled or set aside, either wholly or in part, except by means of a petition in revocation of such judg ment, and then only on legal grounds, and that no legal grounds for so vacating, revoking, annulling or setting aside said judgment are assigned in said declaration;

“Because, even if said judgment were legally reversed or reformed or otherwise vacated, revoked, annulled or set aside, the said defendant, Alexander Buntin, could only be condemned to return to the Sheriff so much of said monies as the court might order him so to refund;

"Because the present action is not, or in the nature of, a petition in revocation of said judgment, nor are there

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any legal grounds of such revocation assigned or alleged in said declaration;

"Because the said defendant, Alexander Buntin, cannot, by reason of anything alleged in said declaration, be legally condemned to pay to the said plaintiffs the sums of money by them claimed in and by said declaration and action, or any part thereof;

"Because the conclusions of said declaration do not legally flow from nor are they legally justified by the allegations of said declaration."

The case having been heard on the issue raised by the demurrer, the demurrer was maintained and the appellants' action dismissed with costs.

The following was the judgment so rendered by the Superior Court:

"La cour, après avoir entendu les demanderesses et le défendeur, Alexander Buntin, par leurs avocats sur la défense en droit, plaidée par le dit défendeur Buntin à l'action en cette cause; avoir examiné la procédure et délibéré ;

Attendu que les demanderesses allèguent qu'elles avaient une hypothèque sur une partie d'une propriété connue et désignée comme étant le No. 642 des plan et livre de renvoi officiels du quartier Saint-Antoine de la cité de Montréal, que le dit lot No. 642 était possédé par Joseph Dier qui l'avait acquis des auteurs des demanderesses en différents temps, et lequel lot comprenait des lopins de terre désignés comme lots Nos. 7, 8, 9 et 10, que le dit lot No. 642 aurait été vendu par le Shérif de ce district, et que sur le produit de la vente le défendeur Buntin aurait été colloqué par le rapport de distribution pour une somme de $2,312.80, et pour $18.60 frais d'opposition, la dite collocation étant basée sur une obligation consentie au dit Buntin par le dit Dier le 18 mai 1869, laquelle somme lui aurait été payée;

"Que les demanderesses auraient fait renouveler leur hypothèque sur le dit lot No. 642 suivant la loi, et que cependant elles n'auraient pas été colloquées.