INTERVENTION. -VENTE

SUPERIOR COURT, IN REVIEW, Montreal, 28th february 1872

Present: MACKAY, J., TORRANCE, J., and BEAUDRY, J.

ENGLAND et ur. vs ‘THE CORPORATION OF ROXTON, and KEARNEY, intervening party.

Held : That, where the conclusions are, that the title to land of à thirl party be declared utterly null, that party, not previously sum-

moned, may intervene, if he sces fit, to repel such conclusions, and it is not answer against’ him, upon whic h his intervention shall be dis. missed, to say that the judgment would not prejudice him.

MacKkaY, J.: On the Gth february 1866, a tax sule took place (under the Municipal Act) of lands in Roxton. On the 126h of february 1868, a deed was executed to Kearney by the secretury-trensurer, for a lot of land bought at the sule. On the 23rd of august 1867, plaintitis, forme + owners, they say, of the land, sued the corporation of Roxton for $300 damages, as for having illegally sold it. Plaintitfs, Francis England and Jane Ruiter, his wife, say that, on the 6th of february 1864, they had paid all taxes; that they never had any notice of the sale proposed; that there always had been upon the land enough movables to pay the taxes and that these ought to have been discussed before the lan:l could be resorted to, and that the sale to Kearney was null. They conclude for damages and that the deed to Kearney Le declared null, and the plaintitts put into possession of the land, the east half of n° six in the first range of Roxton. Defendants pleud that the land was regularly taxed : that it was assessed as John Ruiter’s, who was apparently owner; that all requisite formalities were observed and that over two yeurs having passed, plaintitfs action is barred. Art, 61 of chap. 24 of C. S. of Lower-Canada, regulates sales for taxes. Sub-section 12 says that the deed of snle executed after two years shall transfer to the purchaser all the original holder’s rights, and purge the property from all privileges and hypothees ; and 27 Vic. chap. 9, of 1863, by art. 11, orders that every action to unnul any sale made under section 61 of cap. 24 C. S. of L. C., shall be brought within two veaurs next after the adjudication at the tax sale. Was Kearney to keep quiet, knowing of the conclusions that the plaintitfs were taking against his title and land? We think he was not, whether his title was weak or strone. He might interfere, for he has the interest requisite under art. 154, Code of Procedure (1). He did intervene, but his intervention has been dismissed. His conclusions of intervention are peculiar ; they are: That pluintiffs action be declared prescribed and barred and that it be dismissed. Is plaintitfs action against defendant prescribed ? Has Kearney a title valid against plaintiffs from the fact of over two years having passed ? ? Suppose that plaintits prove that they had paid ‘all taxes and that John Ruiter did not own the land, may Kenrney’s title, not the less, be held goo1? The Superior Court will pass upon these questions. Had Kearney merely asked that, as to him and plain-

(1) Art. 220 C. P. C. of 1897.

sion:

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ions, and it shall be dis.

sale took n. Onthe eurney by t the sule, yners, they for $300 Hs, Francis the Gth of never had 5 had been s and that A coulil be They cone declared land, the Defendants 1S assessed at all retwo yeurs )f chap. 24 . Sub-sectwo years r's rights, iypothecs ; hat every cap. 24 C.

t after the eep quiet, re taking t, whether for he has edure (1).

dismissed.

are: That Ù and that idant pre- S from the

less, be ese quesand pluin-

üffs claim to his land,the action should be dismissed,

would have been better. He seems to conclude for defendants as well as for himself, But as the minor is comprehended in the major, Kenrney's conclusions, though over large, are not fatal to him. They ure plus petita, thnt's all, and onght to Es Leen AULA so, (as in Foley vs Elliott). Plaintifis ask to Le put into possession of the land thnt Kearney has bought; his title first to be declared null. Plaintitfs’ plea to the intervention says that the intervenant has no interest at all in the cause, because no conclusions are against him. The judgment reads : “ Considering that, innsmuch as plaintitfs “have not proceeded in this suit against the intervening “paity, no judgment aflecting his rights could or can be “therein rendered, and that intervention on his part was, “therefore, unnecessary.” We cannot agree ; where conclusions are as here, that the title to land of a third party be declared utterly null, surely that party not previously summoned may intervene, if he sees fit, to repel such conclusions, and it is not answer against him, upon which his intervention shall be dismissed ; “ you needed not intervene ; had you “remained quiet, though your title might have been declared “null, this could not hurt you ; it could not be res judicata “against you” We are unanimously of opinion that the

judgiment complained of should be reversed, and that the

utervenant Kearney be allowed à standing in the cause. (3 R. C., 69.)