99 So. 711 | La. | 1924
Plaintiff H. M. Blackman is a son, the other plaintiffs are grandchildren, and defendants are children of Alf. Black-man and his wife, Margaret Norwood Black-man, both deceased. Two other grandchildren, children of J. W. Blackman, a predeceased son, are not parties hereto.
The purpose of this suit is to annul a certain transfer of real estate made by Mrs. Margaret Blackman to the defendants, on' the ground of simulation and fraud.
Plaintiffs allege that the transfer, in the form of a sale, is a nullity because, while it recites a consideration of $2,500, no consideration was paid, and the instrument was only an attempted donation in disguise. They pray that the deed/ be declared a nullity, with recognition of their interest in said property; and, alternatively, should it be. held that said deed was valid in so far as the interest of Mrs. Blackman was concerned, that they be recognized as owners of the undivided interest coming to them from the estate of their deceased father and grandfather.
The defense is a substantial denial of the allegations of plaintiffs’ petition. It avers that the property was acquired by Mrs. Blackman from her predeceased husband by an act of giving in payment or restitution, of which plaintiffs had knowledge for many years. It denies that the transfer attacked was a simulation, or that there was any fraud attached to its execution, and avers that the deed was valid and passed for a serious consideration. It specifically alleges that defendant E. W. Blackman paid a valuable consideration for his interest; that, as to the other defendant, Mrs. Ola Brown, while she paid no money at the time of the execution of the deed, her interest in the property was transferred to her in payment for services rendered her mother for the last 10 years of her lifetime, cost of medicine, physician’s fees, board and lodging and money advanced.
The court below rejected plaintiffs’ demands, and they have appealed.
The property in question was purchased by Alf. Blackman on January 24, 1887. By an act of giving in payment or restitution, dated September 8, 1891, Alf. Blackman, transferred the property to his wife, Margaret Norwood Blackman. Under date of
On the trial of the case plaintiffs made no attempt to support the allegations of their alternative demand setting up an .interest in the property by virtue of being heirs of Alf. Blackman. They apparently acquiesced in the validity of the act of restitution to Mrs. Blackman. In this court they have definitely recognized their failure to substantiate their said demand by proof, and have confined themselves entirely to the issue raised by their attack on the transfer' by Mrs. Blackman to defendants as being a disguised donation. The brief'filed on behalf of plaintiffs contains the following admission:
“In view of the deed from Mr. Blackman to his wife we will not consider the case from the point of view that the plaintiffs have any interest in the land as heirs of Alf. Blackman, and will confine ourselves to a discussion of the evidence and the law on the question of whether or not the deed from Mrs. Blackman to her two children was not a disguised donation, and should therefore be set aside as in ease of a fraud against her children and grandchildren.”
Plaintiffs rely on article 2444 of the Civil Code as the law of the case. The article reads:
“The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.” (Writer’s italics.)
We find no error in the judgment complained of. Judgment affirined.