43 La. Ann. 943 | La. | 1891
Lead Opinion
'The opinion of the court was delivered by
This is a petitory action against parties in pos•session.
Originally, it was brought by William. Castanié and Mary Bouleries • against Ed. Laughlin and Therese Bouleries.
Mary Bouleries having died, William Castanié, her brother, had himself appointed administrator of her estate, and in that capacity ■continued the prosecution of the suit.
The action was for the recovery of the undivided half of four pieces of real estate, two in the possession of Laughlin and two in that of Therese Bouleries.
The plaintiffs claimed as the legitimate grandchildren of J. B. Bouleries; the first named through his mother, Delphine; the sec - ■ond through her father, Levy, representing themselves as’their lawful issue.
The contention on one side is, that J. B. Bouleries had married very long ago Adéle Ohaeata; that from that union several children were born, all of whom, died, save Delphine and Levy; that the former married B. C. Castanié, William being the issue of that union; that the latter also married, and that Mary Bouleries was born from that
It is further insisted that the widow is liable for rents and revenues from the beginning of the illegal possession to the time of surrender' to the rightful owners.
On the other hand, Laughlin claimed an absolute title to the •entirety of the two lots sold to him by the widow, as the same was her personal and exclusive property.
The widow contended, first, that the plaintiffs were not the legitimate grandchildren of J. B. Bouleries; and, second, even then, that the two lots were paraphernal property, 'acquired with her individual funds, under her separate administration and invested by her in the purchase. Eventually, under the averment that she had in good faith constructed buildings and placed improvements on the lots, the widow, reconvening, claimed the value thereof.
A good deal of proof was admitted, some over objections, consisting of documentary evidence and oral testimony.
There was judgment in favor of Laughlin from which no appeal was taken and which must remain undisturbed.
Further, there was judgment in favor of plaintiffs, recognizing them as the legitimate grandchildren of J. B. Bouleries, declaring one of the two lots to be community property and estopping them from claiming any title to the other lot. The judgment went no .further.
.It proved satisfactory to neither side.
The plaintiffs appealed and ask a recognition of their rights to the second lot and to rents and revenues; and the defendant, Therese Bouleries, as appellee, prays for an amendment of the judgment, by reversing it, in so far as it went in favor of the plaintiffs, and, event
It is clear, that in order to recover from one claiming title to real estate of which he is in possession, a plaintiff can only do so on the strength of his own title.
In order to succeed in the present action, the plaintiffs ought to have established the marriage of J. B. Bouleries with Adéle Chacata, either by the act of celebration, or in its default, by witnesses, or by very strong circumstances establishing a presumption of marriage; and besides, the marriage of their respective authors; in all of which they have altogether failed.
The legal propositions' relied upon by the plaintiffs, touching the circumstances from which the presumption of a marriage arises and which are, to a certain extent, set forth in the authorities cited from the adjudicated cases in this State, and to which no special reference would subserve any useful purpose, can not be and are not disputed by the defendant, who, on the contrary, readily concedes them. The difficulty consists in applying them to the facts established in this controversy ? which, far from leaving on the mind an impression of such presumption, rather dispel all inclination to receive the same.
It does not appear, from the written evidence, or from the oral testimony, that either J. B. Bouleries or Adéle Ohacata ever represented themselves ashavingbeenmarriedi, ever alluded to any circumstance about their marriage, or that any one was ever heard to say that he had attended their marriage, or had heard any one mention anything about it as an actually occurred fact.
No effort is shown to have been made to discover any written evidence of it, either in the records of a church or of any public office in the vicinity of the place where they resided and at which, if celebrated, it occurred.
The very brother of J. B. Bouleries, who was on intimate terms with him all his life, was heard as a witness, and he utters not a word about the fact of the marriage, which, certainly, had it ever taken place, would have been, in some way, at least by hearsay, to-his knowledge. The manner in which he testifies shows that he does not really believe they ever were actually married.
The other witnesses heard do not state any circumstance from which the presumption of the marriage may be inferred.
The mere fact that the parties lived publicly as man and wife for
The defendant, who was heard as a witness, testified that Bouleries told her that he had never married Adéle Ohacata, and that their children were illegitimate.
Of course, this testimony, coming from the party interested in making such statement, as emanating from one whose mouth, sealed in death can not be heard counter to it, is very weak, but feeble as it is, it is entitled to some weight. It can not be presumed that the woman has perjured herself, particularly as her character for truth .and veracity remains altogether unimpeaehed.
It is not contended in the least — on the contrary, it is conceded— that the proof clearly establishes a natural filiation of the plaintiffs way back to J. B. Bouleries and Adéle Ohacata; but, even if the proof had shown that the former had duly acknowledged, in the form prescribed by law, both Delphine and Levy as his children, and, besides, William and Mary as his grandchildren, this would not have conferred upon the latter the rights and privileges of revendication accorded by law to forced heirs, whenever their legitime has been trenched upon in some way o.r other.
The documentary evidence shows that the two lots were acquired by the defendant with the expressed statement that they were purchased out of her personal funds and for her separate advantage and exclusive benefit, or language to that effect; the investment, thus declared to have been made, having been admitted by J. B. Bouleries, who has signed the deeds.
The plaintiffs, not having the rights of forced heirs, and not being creditors, urging injury, etc., have no standing in court to contest the title of the defendant to the lots, who, we think, has even then satisfactorily proved them to be her separate estate, which has, therefore, never formed part of the community between Bouleries and her.
It is, therefore, ordered and decreed that the judgement appealed from be reversed, so far as it recognizes title in plaintiffs to the half -of one of the two lots involved; that, so far as it is rendered in favor of defendant, Therese Bouleries, it be affirmed; and, it is further adjudged, that it be so amended as to reject the plaintiffs’ demand
Rehearing
On Application nor Rehearing.
Alleging themselves to be the sole surviving descendants of J. B. Bouleries, their grandfather, the plaintiffs institute this action against his surviving widow of an alleged second marriage, and one of her transferees, for the recovery of their said ancestors’ one-half interest in certain real estate, which was acquired during said second marriage.
Plaintiffs’ contention is, that very many years ago, their grandfather was married to Adelé Ohacata, and, that of this marriage their parents, Delphine and Levy Bouleries were the sole surviving issue.
The answer of the defendants is a general denial, coupled with the special averment that the plaintiffs are not heirs of J. B. Bouleries, and that the property in dispute was, and is, not community, but belongs to his widow’s separate paraphernal estate.
Our opinion holds with the defendant’s theory on both of these propositions.
It declares substantially that there is in the record no proof of such a marriage, or even that the said parties ever declared that they were or ever had been married. That no one was ever heard to say that he had witnessed the celebration of a marriage between them. That the plaintiffs appear to have made no search in the records of any church or public office of the vicinity of where said parties lived for written or record proof of such a marriage.
It then announces as a proposition of law, that “ the mere fact that the parties lived publicly as man and wife for a length of time, and treated their issue as though they were born in lawful wedlock, is insufficient, under the circumstances surrounding this case,, to raise the presumption claimed.”
It then states as an additional fact worthy of note,, that the proof abundantly discloses, and that it is conceded by defendants to be a fact, that there was a filiation between said parties for many years; but it announces as a legal proposition, that even if the plaintiffs’ ancestor had duly acknowledged their father and. mother as his
Our opinion then states, as a fact — and this proposition is to be taken alternatively — that it appears from the defendant’s titles that she purchased the property in her own paraphernal right, with the concurrence of her husband, J. B. Bouleries, who joined his wife therein, and that plaintiffs have no standing in court as forced heirs or creditors would to attack them.
The objections urged in plaintiffs’ and appellee’s application, to our opinion are: (1) That the defendant’s answer does not fairly raise the question of the legitimacy of their parentage, that the maintenance of that proposition was and is a surprise to them, and that our judgment and decree should have been one of non-suit, only; (2) that the defendant’s deeds contain no recital disclosing the paraphernal; character of the acquisition; (3) that the proof introduced aliunde was insufficient to establish that fact which is essential to maintain.. defendant’s title.
(а) As plaintiffs’ title was alleged to be one by inheritance, and the - answer denied their heirship, definite proof was absolutely required, of plaintiffs’ legitimate heirship to entitle them to recover from a . stranger; and, in thus instituting suit, they incurred this risk, and, the burden of making such proof.
We can not understand in what manner they were taken by surprise ; but if the interpretation placed by the District Judge upon-, defendant’s answer caused them surprise, the proper course would, have been for their counsel to have then stated the grounds of surprise, demanded a continuance, and reserved a bill of exceptions to-, the judge’s declination, if refused. On such a showing we could have given plaintiff relief from any error the judge below might have committed.
We are of opinion that the defendants are fully entitled to the judgment pronounced.
(б) Our opinion does not hold that defendant, Therese Bouleries, is-. the owner, in her individual paraphernal right, of the property in controversy, but that plaintiffs have no standing in court as legitimate grandchildren of J. B. Bouleries to have-the titles interpreted and the property declared community property. That even if the.
Now, it is worthy of note that this proposition is hypothetically stated, and not as one that is substantiated by proof.
A reéxamination of the record fails to satisfy our minds of the correctness of the allegations of the application. We are unable to find any proof of marriage, or acknowledgment either. Really, the application does not contend that there is any such evidence in the record. Reduced to a last analysis, the ingenious argument is, that as the judgment should have been one of non-suit, therefore the legitimacy of the plaintiffs is an undetermined question, and therefore they have the status of forced heirs, and the corresponding rights of forced heirs to revendicate the property.
It does not avail the plaintiff to invoke the ruling in Bennett vs. Cignori, 41 An. 1145, in which a non-suit was rendered. The court did so because the plaintiff there had failed to introduce evidence which was within his reach; but it is not pretended in the present instance that any proof exists. It is claimed, on the contrary, that all the evidence of which the ease was susceptible was introduced. The plaintiffs have no right to keep perpetually a sword hanging over defendant’s head by the reserve of a right to eternal litigation. Interest sei publiese at sit finis litium.
Having maintained the finality of the judgment,' their argument is •fully answered and the correctness of the opinion established.
Rehearing refused.
