Rivarde v. Rousseau

The judgment of the court was pronounced by Rost, J. The late Achille Rivarde purchased a house and lot from the firm of Samuel Smith Co., and gave in payment a mortgage note belonging to A. Rivarde Co., a firm composed of himself and the two plaintiffs; and, subsequently, sold the said property for cash to one Berniaud, who is now ah absconding debtor represented by the defendant, the syndic, appointed by his creditors. The plaintiffs claim, each, one undivided third of the lot, on the ground that it was acquired with partnership funds; that Berniaud was aware of this fact when he purchased, and is subject to all the equities between them and his vendors. There was judgment in their favor, and the defendant appealed. [4] The only evidence adduced to show that Berniaud had notice that the lot had been acquired by partnership funds, is a reference in the act of sale from Rivarde to Berniaud, to the act of sale from Samuel Smith Co. to him, passed before another notary of this city, in which that fact appears. The district judge, relying on the authority of the case of Carian v. Rieffel, 2 N. S. 619, considered this sufficient to affect Berniaud with notice. The two cases are by no means analogous. In the case of Rieffel, he was charged with the fraudulent concealment of a mortgage on a slave he had sold,, and the object of the suit was to rescind the sale. The court held, that as the act of sale to the defendant contained an express mention of the mortgage complained of, the reference to that act in the deed of sale between the parties, placed it fully within the knowledge of the plaintiff for the purpose of examination, and was inconsistent with the alleged intention of the defendant to conceal the existence of the mortgage. But in this case, the district, judge, has gone further and decided, not that the means afforded to obtain knowledge destroy any recourse against the vendor founded on concealment, as in Rieffel’s case, but, that the means to obtain knowledge, are equivalent to actual knowledge on the part of the purchaser. Parties are presumed to be in good faith until the contrary* is shown, and to destroy that presumption, it is not sufficient to prove that the vendee had the means of acquiring knowledge of the defect in his title; it must further be shown, that he availed himself of them, and that in the present case, for instance, he followed up the reference in his title, by an examination of that of his vendor. This case is, in all respects, similar to those of Fletcher et als. v. Cuvelier, 4 L. R. 274; and Moran's Heirs v. The Mayor et als., 5 L. R. 243. It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.